The battle over the right to record police is far from over. That’s because a case pending over a routine traffic stop in Lakewood, Colorado, where police interfered with a citizen journalist recording, could have a huge impact on a controversial legal precedent that shields cops from legal liability.
Post-Production: Adam Coley
Taya Graham: Hello. My name is Taya Graham, and welcome to the Police Accountability Report. As I always make clear, this show has a single purpose: holding the politically powerful institution of policing accountable. And to do so, we don’t just focus on the bad behavior of individual cops. Instead, we examine the system that makes bad policing possible.
And today, we’re going to achieve that goal by examining how a Cop Watcher’s efforts to record police, and what cops did in response is actually leading to some truly surprising developments in our legal system. In fact, what is happening is so profound it calls into question the entire notion that the Cop Watcher’s work is a worthless endeavor in search of clicks.
But before we get started, I want you watching to know that if you have evidence of police misconduct, please email it to us privately at email@example.com. And please like, share, and comment on our videos. You know I read your comments and appreciate them. And of course you can always reach out to me directly @tayasBaltimore on Facebook or Twitter. And of course, if you can, please hit the Patreon link pinned below in the comment, because we do have some extras for our PAR family. All right, now we’ve gotten all that out of the way.
Now, everyone who watches this show knows that we don’t just report on bad cops, but we also focus on the people who watch them. Meaning citizen journalists with their own YouTube channels, whose efforts to document law enforcement overreach have been both popular and controversial. Most of the criticism can be summarized thusly: Cop Watchers and auditors, otherwise known as frauditors, don’t really accomplish any real change. Instead, they simply provoke police to get clicks and eventually monetize their videos in exchange for cash.
So, first, I’m not even going to weigh into the debate about monetizing a video. Every major news corporation does, so why is it so deplorable for a citizen journalist to do the same? Nobody seems to criticize how companies like Google and Facebook monetize practically everything we do and then sell the data.
But today, I want to address the second prong of the frauditors argument. Namely, to quote beloved American author William Faulkner, Cop Watchers are full of sound and fury signifying nothing. Well, interestingly, a recent case pretty much turns that notion on its head. It involves a Cop Watcher known as Liberty Freak or Abade. He is and was a video activist who worked closely with controversial fellow Cop Watcher Eric Brandt, who has also been accused of being nothing more than a social menace.
But as I already mentioned, a case before the Federal 10th Circuit Court of Appeals may actually put these two YouTubers in a position to do something pretty extraordinary. What I mean is that according to the briefs filed with court in support of their case, the video you are now seeing on screen, has the potential to deliver a stinging blow to the legal orthodoxy which has made police almost immune to accountability.
But before I delve into the details of what might happen and the implications, I want to start by giving you background on the actual encounter with the police that started the series of, at least for people in favor of recording the police, fortunate events. The story begins in 2019 when the Cop Watcher Liberty Freak, along with Eric Brandt, was filming police at an accident scene in Lakewood, Colorado. The duo was exercising their First Amendment rights when a Lakewood City police officer decided he was going to interfere with their recording. Let’s watch.
[VIDEO CLIP BEGINS]
Eric Brandt: Hey, get the fuck out of his face, asshole.
Abade: Can I help you?
Officer Yehia: No.
Abade: All right.
Officer Yehia: I don’t need your help.
You got a fucking problem, you fucking goon?
Eric Brandt: Hey, get the fuck out of here, police asshole.
Officer Yehia: Get the fuck out of my fucking line, man. What’s wrong with you? Clown.
Abade: Calling me a clown?
Officer Yehia: There’s always going to be one fucking clown that shows up. [crosstalk].
Abade: Fucking jackass.
Officer Yehia: You’re always the jackass that makes those videos.
[VIDEO CLIP ENDS]
Taya Graham: Now, not only did the officer obstruct their clearly lawful right to record, the move further escalated an encounter in a way that we, unfortunately, have witnessed before on this show, as you can see.
[VIDEO CLIP BEGINS]
Abade: Don’t shine that in my eyes. Don’t shine that in my eyes.
Officer Yehia: Fuck you. You guys shine those things in my eyes all the time.
Abade: You think you get extra privileges [inaudible].
Officer Yehia: Yeah, I’ve just had them shined in my eyes all night by you guys.
[VIDEO CLIP ENDS]
Taya Graham: But Abade did not simply sit back and allow the police to have the final word on his First Amendment rights. He, like his counterpart Eric, used the courts to contest the behavior of Officer Yehia. Just a side note here, many of the auditors we have interviewed on this channel have actually used the courts to make real progress to affirm the Constitutional rights of everyone.
Take, for example, well known Cop Watcher the Battousai, who won a case when a cop in Texas prevented him from recording a police facility, and has actually made case law known as Turner versus Lieutenant Driver which is cited often by lawyers who fight for freedom of speech. But after Abade sued is when the rubber met the proverbial road. That’s because lawyers representing Officer Yehia turned to a warm blanket of legal theory used by cops across the country to evade any responsibility for their actions.
It’s a concept known as qualified immunity. The idea that police officers are immune to legal liability if the right they violate is not firmly established when the violation occurred. Just to give you some background on the long and twisted history of this controversial legal concept, the idea of qualified immunity was carved out by courts in response to a federal statute known as 1983. That statute was passed during the reconstruction era to allow citizens to sue public officials acting under the color of law for violations of Constitutional rights. Over time, the court carved out these special exemptions for certain public officials, including police officers, to give them leeway to argue that the right they violated wasn’t firmly established and thus cannot be held accountable for their actions.
A brief on Abade’s case by the Cato Institute points out this esoteric legal theory has evolved into a two-headed monster of police impunity as courts have extended this concept to a variety of cases where police and public officials have violated someone’s rights and then simply cloaked themselves in the aforementioned blanket of immunity and walked away scott-free. In fact, this idea has become so toxic to the notion of police accountability that it was originally part of a bipartisan legislation aimed at reforming police currently still on the docket in Washington. Unfortunately, that part of the bill has been carved out during negotiations between Democrats and Republicans. I wonder why.
But nevertheless, could it be that Abade and Eric Brandt and their band of so-called frauditors might be able to achieve what our nation’s elites cannot? Could the YouTubers who have been ridiculed as click-baiting opportunists actually strike down a pillar of law enforcement protection that the best lawyers have yet to be able to dent?
Well, it is actually possible, and for more and why and how this could happen I’m going to talk to the man at the center of the case himself, Abade, also known as Liberty Freak. But before we do, I’m joined by my reporting partner, Stephen Janis, who has been delving into the case and has more on the legal filings and what they mean.
Stephen, thank you so much for joining me.
Stephen Janis: Taya, thanks for having me. I appreciate it.
Taya Graham: Now, Stephen, I was talking about qualified immunity and how this case could set precedent. How has qualified immunity been used in this case and what are the implications?
Stephen Janis: I think what’s interesting about this case is the way qualified immunity was used by the court. The district court granted it in 2019. This is after the first, the third, the fifth, the seventh, the ninth, and 11th circuits had already granted or affirmed that the First Amendment right to record was an established right, and that’s where it conflicts with the idea of qualified immunity. So, this case could be a particularly interesting case because the whole concept of qualified immunity is the officer’s not aware. This also includes the fact that there was a 2015 law passed in Colorado that also affirmed the right to record police. So there are multiple legal issues where qualified immunity, the use of it, could be challenged.
Taya Graham: There have been several briefs filed in the case including with the US Department of Justice. What do the briefs say and why are they important?
Stephen Janis: Well, what’s very important about it, just the fact the US Department of Justice has said this is a very pivotal First Amendment rights case, that the ability to record police is fundamental to holding police accountable. Which of course has been the message of Cop Watchers, and which actually, weirdly, of all things, the Department of Justice has affirmed.
The Cato Institute has also joined with an amicus brief that focuses mostly on qualified immunity, saying that the legal concept is untethered from the statute from which it arose and that it’s completely gotten out of control basically, and been used in many cases where it’s not warranted. So, these briefs, among others – The Electronic Frontier Foundation, the University of Colorado Law School – It’s an incredible collection of legal minds who are going to bat for two auditors who had their cameras and were recording an accident in Lakeland, Colorado.
Taya Graham: So what makes you think this case could have some real impact on qualified immunity, and why is it important with regards to First Amendment rights and the right to record?
Stephen Janis: Well, I think when the legal system reacts to correct something, it’s when something has been abused. And the fact that the district court just dismissed the case based on qualified immunity when there was much evidence that the right was established – Like I said, all those circuits had already affirmed that right – I think this is going to be a test case where a good legal mind will have the opportunity to say, you know what, you’ve overstepped your bounds. It’s time to start pushing back on this whole notion of qualified immunity.
I think this could be a really pivotal case, which I think speaks to the power of cop watching and why even going to a routine accident can have an important influence on our First Amendment rights. Me, as a journalist, I am hoping that this case turns out well because it’s important to us. We record stuff on sidewalks. And so, this shows how this whole continuum of behavior, how cop watching, auditors, and journalism can have effects that you don’t see or unintended effects or positive outcomes for all of us.
Taya Graham: And to get more details on the case and how it’s affected him personally, I’m joined by the plaintiff himself, the Liberty Freak, also known as Abade. Abade, thank you so much for joining us.
Abade: Thank you guys for having me here. It’s my pleasure to be here.
Taya Graham: First, tell us about the initial incident of the video that we’re going to be showing on the screen now. Describe what we are seeing.
Abade: We were together as a group. We were cop watching out in the city of Denver. That evening we had gone to LoDo, which is a really popular spot here in Denver with all the clubs and all of that kind of stuff, a lot of youth out there in the streets and a lot of police officers.
We had a good night of cop watching. Then, as we were going home we saw that there were a couple police cars that had somebody pulled over. So we decided, hey, let’s look out for our neighbor. And let’s just document this moment. As we began to document it, just, a police officer showed up, he decided to come in an aggressive manner. And then he got out of the car, he got in front of me, and he was purposefully trying to interrupt our videotaping. And he just thought it was the right thing to do at the moment, I guess. But the law in Colorado says otherwise.
Taya Graham: So what happened because of this interaction with police? Was your property taken or are you looking at charges, or are your fellow Cop Watchers looking at charges?
Abade: Well, when the police officer got there he purposefully decided to escalate the situation as much as possible to be able to cause as much of a distraction and as much of an interference to what we were doing. He actually states this in a court case which happened due to the fact that my partner, Eric Brandt, had gotten arrested for shining a light in a police officer’s eyes for three seconds.
Taya Graham: Tell us what happened when you filed the lawsuit. Why did you file it? And I believe qualified immunity played a role here.
Abade: The reason why I filed the lawsuit is because I get told a lot, well, sue me. Well, take it to court. So, I actually learned how to do that, and I had followed all the procedures to be able to. The written law also states how you can bring the issue to the offending agency and they’re supposed to review it, and they’re supposed to give you a certain amount. And if they refuse it, then you can sue them for $15,000.
So, I thought I was going to follow it through the state court at first, but I had spoken with some of my friends, some attorneys, and this question just hadn’t been answered federally in this circuit. So, we gave it a crack because it was pretty blatant and obvious what he had done. And he even stated very proudly what he had done. He detailed it in a court of law and he detailed it also in the original statement, as if the law really didn’t even exist. So I figured that there was enough there to be able to, with his admission, basically – Because that’s what it is. Basically, it’s an admission of guilt – That I had a chance at it federally, but it was dismissed with prejudice. But then I got lucky.
Taya Graham: Now, there was a law filed in Colorado in 2015 to protect the right to record the police and to protect the First Amendment enshrined in the Constitution. How did this officer defend himself from that law? How did he use qualified immunity to defend himself?
Abade: Unfortunately, lately, in the courts they’ve been taking the question of whether it’s been well established in the court, so they’re bringing it down to such detailed levels where nobody can really follow through with that. So exact that they’ve had cases where one person was tased, the other person was pepper sprayed. I can’t remember which was which, but it was ruled that he wasn’t tased. He got pepper sprayed. Even though the cases were identical, identical.
So, here, the police have been using qualified immunity for a long time to get away with all kinds of discrepancies and crimes. And so, the state filed a law that says that they lost qualified immunity if they violate your rights in any way, but you’d have to sue them through the state to be able to get that benefit. So, since I sued them through the federal court… Whenever you write these lawsuits they always come back. Their first comeback is always, well because the officer was shrouded, for he was simply anointed, surrounded in his qualified immunity because his impenetrable… I mean, they use all these words. It’s hilarious how they explain it all. So, that’s what they did here.
Taya Graham: So now we have an amicus curiae, a friend of the court brief, where the United States Department of Justice has written eloquently arguing for the right to record police. Who has joined your case and written in support of the right to record police and of the First Amendment?
Abade: I guess, chronologically, I’d have to say that first it was dismissed and I was bummed because I tried really hard on that one. And then somebody sent me a link to a newspaper ad in the Denver Gazette. And then that reporter called me and I answered a couple questions and he was the one that let me know how big of a deal this was. I had no idea. I kind of figured it out when I saw that Andrew McNulty and David Lane had actually commented on the article.
They’ve battled this a lot, too. So, this is really, really a question that needs to be answered here. It’s a really serious issue here, as far as Colorado goes. That’s why the state actually removed the qualified immunity. So, then I received an email from an attorney firm called Arnold and Porter out of Washington, D.C. And they asked me, they said that they had seen my case and that they were very interested in my case but they had to iron out a few little wrinkles to see if they were going to take it or not. But that they were interested, but with no guarantees.
It ended up being that they took the case. I didn’t even know who they were. Later found out that they’re a pretty big deal when it comes to this, civil rights issues and things. They’re an international firm. So, I was like, wow. I was pretty blown away by that. The most professional attorneys I ever dealt with. My attorney is Mr. Andrew Tuck, and he is just a beautiful human being.
And then from there, just a couple days ago, he texted me and was like, did you check your email? Did you see who wrote a brief on your case? And then I was like, what? And then I look, and then it said, from the United States of America. I was like, well that’s… But then also I see that, and then further down it said, Department of Justice, Civil Rights Division. And I was like, wow.
And then, now, when I looked at it, I have some other ones. I have also the Cato Institute wrote an amicus. And so did the National Police Accountability Project as well. The Electronic Freedom Foundation. So, I’m pretty humbled. Yeah, I’m pretty humbled.
Taya Graham: Now, you are making case law. And I noticed the DOJ cited Turner versus Lieutenant Driver, which is the case law that Batoussai affected. What do you think this says to the detractors of auditors and Cop Watchers?
Abade: Well, first I have to say kudos to Philip Turner for standing up and being one of the first Cop Watchers to actually make case law on this issue in his area, in his circuit. It is a big deal because we talk about Mr. Turner a lot, especially when it first happened. When I saw that, that’s when I said, you know, I think I’m going to put that on my bucket list. I’d like to be able to make case law and have my last name always mentioned for the cause of freedom. And I never thought that it would ever happen. And here we are.
Taya Graham: Do you feel like this is a vindication for you and other Cop Watchers? That it gives credence to your work and shows that it actually has value for the community?
Abade: Fuck yeah! No, I know you’ll need to edit that out, but yeah. I do have to say that it does feel good, a little bit, because we try so hard here and we really live what we do here. We’re dedicated. None of this would’ve happened, by the way, if it wouldn’t have been for my friend Eric Brandt. He’s the one that helped me co-write that. And it feels good to see that people are making a change, and it is making a change. And it is good to see that people are actually taking it all the way to the end. Because that’s the key. The key is to be able to take it all the way to the end, right? Not everyone can do that.
Taya Graham: Now, I think we need to make a factual correction to the record when it comes to the notion of qualified immunity. That’s because if you look at the data Stephen cited and the argument before the 10th circuit court of appeals, it raises the question if the label qualified immunity is simply a misnomer. Perhaps it would be more accurate to call this legal precedent run amok something more apt. How about qualified impunity?
What do I mean? It is a point we’ve discussed quite often on the show but bears repeating, which is you cannot have two systems of justice, one for the cops and one for the rest of us, and expect good results. And that’s exactly what qualified immunity, or qualified impunity, represents.
But it doesn’t end with civil liability. Consider the recent case in our own backyard involving a former Baltimore County police officer. The officer, Anthony Westerman, was recently convicted of two counts of rape and several counts of sexual assault. The crimes occurred over period of three years, when Westerman was accused and found guilty of offering to take a woman home in an Uber and then raping her. He was later charged with a second rape of a woman who came forward after the first charges were announced.
But what happened after the case made its way to court is, I think, illustrative of the two-tiered system of justice we conjured in our construction of an American police state. Initially, the officer asked for a judge trial, a choice available to defendants in Maryland that has become a favorite go-to for cops for obvious reasons. Even so, the judge initially convicted him on all counts. But when it came to sentencing, the judge reversed his ruling, noting that the second victim did not present any evidence of psychological harm due to Westerman’s actions.
So, what happened? For a crime that would normally require a 10 to 15 year sentence, the judge threw the proverbial book at the former officer consigning him to four years of home detention. Seriously. But it gets worse. Prior to the sentencing, because the judge said he did not intend to convict Westerman on the second count, he consolidated both cases before sentencing him, therefore giving him the ability to mete out a punishment that was, to say, the least lenient.
Now, the reason I’m counting the sentencing of Westerman is to make a simple point. As we have reported over and over again on this show, when the law is applied to us it is interpreted in the strictest sense possible. And when the law is applied to cops the opposite is true. In other words there are simply two sets of laws in this country, one for cops and one for citizens. And in the case of Westerman, as this proves, only the most extreme cases of bad cops are subject to the same rendering of law as us.
And almost never, in any case we’ve ever investigated, is the law applied with the same empathy as we see in Westerman’s case to the people who police purport to serve. What does this mean and why is this so important? Well, I think it speaks to the notion that policing is, by design, anti-democratic. In other words the institution, as it becomes more powerful, evolves into a force more and more antithetical to the existence of democracy itself. I mean, what we have seen in the plethora of reports on police overreach on our show alone is a literally armed branch of shadow military often operating outside the law and not accountable to it.
As that institution grows in influence, it warps the system that sustains it. Hence, we see cases like Westerman’s. Now, I will concede that there have been recent examples of cops going to jail for committing crimes. In our own city, State’s Attorney Marilyn Mosby has charged dozens of cops with crimes and many have resulted in significant sentences. And of course we have national examples like Derrick Chauvin, who was recently convicted and sentenced for the murder of George Floyd.
But you can’t assess an institution on the basis of the exceptions. And certainly those cases appear to be just that. What we see day in and day out on our show is case after case and bad arrest after bad arrest slowly chipping away at our freedoms, our Constitutional rights, and the idea that the legal system is about protecting the innocent first and jailing the guilty second. And this proliferation of badge-induced power is not just limited to bad cases and bad arrests. In a sense, I think it has a more profound effect on both our civic imagination and our collective sense of communal possibility.
What do I mean? Well, it was something that struck me when I drove around Baltimore reporting on poverty and violence here. As many of you probably already know, wide swaths of my city are filled with abandoned row homes and deserted blocks, communities that were once thriving and now have been all but consigned to desolation. What made me consider this visual evidence of societal neglect is how much the city bet its future on policing and how that philosophy prompted a very destructive strategy presaged by my point about the corrosive power of unmitigated law enforcement.
That’s because during the aughts the city engaged in a strategy known as zero tolerance, a policy that led to almost 100,000 arrests in a city with roughly 600,000 people. That is roughly one in six people arrested, ripped away from their families, their homes, and their jobs. Now, setting aside for the moment the havoc that it wreaked on our city, which we are still dealing with today, I want to address the philosophy the idea was based on as an example of what I mean about the perils of empowering law enforcement above and beyond all other forms of governance.
The idea of zero tolerance was based upon an article on broken windows theory written by sociologists James Q. Wilson and George L. Kelly. The pair asserted that a community which allowed petty crime to proliferate was like a building in disrepair, a representation of failed government and communal malaise. The duo proposed a solution to this decline was to arrest people for petty crimes, and thus fix the broken windows as a means to discourage more serious crimes. And unfortunately it was an idea that was embraced by law enforcement agencies with gusto, leading to the horrible consequences I described before.
But the reason I bring this up today is because something struck me about that idea that I just think seems odd. Because as I drive around Baltimore, I wonder why no one ever thought of actually applying the metaphor of their idea literally. What do I mean?
Well, if broken windows represent disrepair, why didn’t the city fix them? If a building in disrepair symbolically represents neglect and engenders crime, why not repair it? I mean, the city of Baltimore has spent billions and billions on policing. What if instead we had spent it on fixing the broken sidewalks and dilapidated buildings? Wouldn’t we be better off? I mean, what if we’d spent it on parks and better athletic facilities? What if we simply spent it on making sure that our schools were the best in the world? Would things really be worse? I doubt it. And guess what? Fixing up a city actually reduces crime. I’m not even kidding.
A study in Philadelphia by the National Institute of Health found that clearing, mowing, and planting on vacant lots reduced gun violence in the surrounding neighborhoods by up to 30%. I’m serious. Just making a slight effort to beautify the city actually had a greater impact on reducing violence than police.
And that’s the point about the anti-democratic tendencies of an ever-expanding law enforcement-industrial complex. All that money poured into cops and police pensions and militarized equipment is money that isn’t spent on building a stronger community. All the assets allocated towards empowering people with guns and badges and paying judges that coddle them does nothing for the infrastructure of democracy. I mean, we can’t protect the health of our democracy if we don’t invest in its most important institutions. Or put simply, do we want to educate and enlighten, or simply punish? Do we want to beautify and build, or incarcerate?
I’m asking because, driving around my city, all I see is the collective madness of a community willing to fund generous overtime but not fix a freaking sidewalk that has turned into a sinkhole. Which is why we will continue not to just hold police accountable, but also try to evince the less obvious consequences of not doing so at all. I think it’s clear that our freedom, our collective imagination, and our future are all at risk.
I want to thank Abade, also known as LibertyfreakTV, for sharing with us the wonderful news about his lawsuit. Please keep us updated, and thank you so much for sharing the good news. And of course, I want to thank intrepid reporter Stephen Janis for his writing, his research ,and his editing on this piece. Thank you, Stephen.
Stephen Janis: Taya, thanks for having me. I really appreciate it.
Taya Graham: And I want to thank friend of the show Noli Dee for her support. Thanks, Noli Dee. And a very special thank you to our Patreons. We appreciate you. And I want you watching to know that if you have evidence of police misconduct or brutality, please share it with us and we might be able to investigate for you. Please reach out to us. You can email us tips privately at firstname.lastname@example.org and share your evidence of police misconduct. You can also message us at Police Accountability Report on Facebook or Instagram, or @eyesonpolice on Twitter. And of course you can always message me directly @tayasbaltimore on Twitter and Facebook.
And please like and comment. I do read your comments and appreciate them. And every like and comment helps our videos. And we do have a Patreon link pinned in the comments below. So if you feel inspired, please consider donating. My name is Taya Graham, and I am your host of the Police Accountability Report. Please, be safe out there.