Washington and Lee Law professor Brandon Hasbrouck has filed an amicus brief with the U.S. District Court for the Eastern District of Virginia in a case considering several constitutional and civil rights issues. Hasbrouck co-authored the brief with Professor Katherine Mims Crocker of the William & Mary Law School.
The case, Dyer v. Smith, was brought by a Richmond International Airport traveler against TSA agents who prevented the plaintiff from videorecording his pat-down search and forced him to delete a recording before allowing him to fly. The civil suit claims violations of the First and Fourth Amendment and is currently before Judge John A. Gibney of the District’s Richmond Division.
“This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa,” Hasbrouck writes. “As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force.”
The brief’s authors are civil rights scholars, filing in support of neither party to the suit. They present reasons why protections from personal liability afforded to government agents, known as qualified immunity, may not apply in this case, and why the defendants could be held accountable for rights violations under the doctrine set forth by the U.S. Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
“In assessing this case, the Court should keep in mind the powerful role that video recording can play in protecting the public—especially communities of color—from abusive government conduct,” Hasbrouck writes. “[We] urge the Court to consider the importance of video recording to exposing and prompting the reform of unlawful government practices.”
Hasbrouck’s brief was filed on December 11 and can be found in the W&L Law Scholarly Commons digital scholarship repository.
Brandon Hasbrouck is an assistant professor at W&L Law, where his teaching and research focus on criminal law and procedure, constitutional law, federal courts, and appellate advocacy. His recent scholarship includes “Saving Justice: Why Sentencing Errors Fall Within the Savings Clause, 28 U.S.C. § 2255(e),” published in the Georgetown Law Journal. You can follow him on Twitter: @b_hasbrouck.