People For the American Way Foundation

Biden Judge Rejects Police Claim of Qualified Immunity for Arresting Journalist Filming Story on Oil Refinery

Biden Judge Rejects Police Claim of Qualified Immunity for Arresting Journalist Filming Story on Oil Refinery

Judge Veronica Rossman,  nominated by President Biden to the Tenth Circuit court of appeals, wrote a 2-1 decision rejecting a police officer’s appeal that he should get qualified immunity for arresting an independent journalist who was filming at a New Mexico oil refinery for a story on refinery operations. The April 2024 ruling was in Bustillos v City of Artesia.


What is the background of this case?

Albert Bustillos is an independent journalist who was filming for a story on how an oil refinery near Artesia, New Mexico “works to turn fuel into gas or asphalt.”  Reporting has suggested that the refinery is “one of the nation’s top emitters of air-polluting benzene.” Although there are fences and barriers in the refinery area, there are also public pathways on which Bustillos contended he remained while filming.

Nonetheless, plant security guards approached Bustillos. He explained he was filming a story and would remain on public property. Security then reported to 911 what they called a “suspicious person” filming in the area.  Several Artesia police approached Bustillos, including Corporal David Bailey, and demanded to see his ID.

Bustillos explained what he was doing as an independent journalist on public property and refused to turn over ID because, as he explained, “he had not broken the law” and thus could not be required to do so. Bailey nevertheless arrested him without a warrant for failing to provide ID. The case against Bustillos was later dismissed, and he filed a civil rights suit under the First and Fourth Amendments against Bailey and Artesia. Bailey claimed he was entitled to qualified immunity and that the case against him should be dismissed. A federal district court rejected the immunity claim, and Bailey appealed to the Tenth Circuit.


How did Judge Rossman and the Tenth Circuit Rule and Why is it Important?

Judge Rossman wrote a 2-1 decision that rejected Bailey’s appeal and affirmed the district court’s ruling that Bustillos’ case should go forward. Based on the record and established case law, Rossman explained that to justify a warrantless arrest for failure to provide ID, Bailey must have had “reasonable suspicion” of a more serious “underlying crime.” She specifically rejected Bailey’s claim that his “generalized suspicions” that “something was amiss” and that Bustillos “seemed suspicious” was sufficient, noting that this would allow police to improperly rely on “[i]nchoate suspicions and unparticularized hunches” to comply with the Fourth Amendment.

Rossman went on to consider Bailey’s claims that he had reasonable suspicion of underlying crimes, including disorderly conduct, potential terrorist activity, loitering, and trespass. She and the majority agreed with the district court’s findings that these claims were not valid. She specifically explained that, contrary to the partial dissent of Judge Robert Bacharach, the claim that Bustillos entered on private property to do filming is not “sustainable on the record before us.” All three judges agreed with the district court that Bailey had no proper basis to claim qualified immunity from Bustillos’ “First Amendment retaliation claim” for arresting him while filming a news story.

Judge Rossman’s decision was obviously important to allow Albert Bustillos to proceed with his claim for damages and for justice against Corporal Bailey. It also reinforces and sets important precedent that limits police immunity claims against lawsuits seeking to uphold First and Fourth Amendment rights. This is particularly true in the Tenth Circuit, which includes New Mexico, Oklahoma, Kansas, Colorado, Wyoming and Utah. The ruling also reinforces the importance of promptly confirming more fair-minded judges like Judge Rossman to our federal courts.