Appellate oral arguments are normally governed by protocol and decorum. A dustup last month in the Fourth Circuit was a notable exception. Before checking out what the brouhaha was about, let’s look at the facts that led to it.
The traffic stop
Dijon Sharpe was a passenger in a car properly stopped for a traffic violation by Winterville (North Carolina) Police Department Officers Helms and Ellis. Sharpe began live-streaming the encounter with Facebook Live to his Facebook account. Helms asked Sharpe if he was doing Facebook Live and Sharpe said he was. Helms reached inside the car for Sharpe’s phone, pulling on his seat belt and shirt. Helms explained Sharpe couldn’t do Facebook Live “because that’s an officer safety issue.”
However, Helms didn’t take Sharpe’s phone. Sharpe continued to live stream and message with people watching. Later, Ellis told Sharpe he was free to record the police, adding that the police recorded also, but he wouldn’t be allowed to live stream because that let everyone who followed him online know where the encounter was occurring and there might be just one officer on scene. Ellis said if Sharpe tried to Facebook Live in the future, his phone would be taken, and he would be arrested.
The First Amendment crusade
Sharpe filed a 42 U.S.C. § 1983 lawsuit alleging his First Amendment rights were violated by the officers’ actions and the PD’s policy to prohibit live streaming. The claims encompassed the Town of Winterville.
In two different orders, the U.S. District Court granted summary judgment to the officers, department and town based on the pleadings. The court concluded no circuit had previously found a passenger had a right to live stream a traffic stop. Additionally, the Fourth Circuit had not even decided a passenger had a right to record, let alone live stream a stop.
Sharpe appealed to a 3-judge panel of the Fourth Circuit. In briefing and oral argument, his attorney said other circuits’ decisions that found a right to record traffic stops supported finding a right to live stream them. He contended a generalized statement regarding officer safety did not override Sharpe’s First Amendment right. Live streaming served a strong public and governmental interest in deterring police misconduct. It would also keep officers safer by deterring conduct against them which would be captured on video.
Sharpe’s First Amendment crusade drew significant attention from civil liberties and press advocates. Seven amicus briefs were filed in support of his claims.
The Fourth Amendment crusade
Counsel for the officers, the department and the town, in briefing and at oral argument, pointed out the lack of any case that held there was a right to live stream traffic stops. Even within the circuits that found a right to record police, none addressed the right of a passenger in a traffic stop to record.
Counsel also argued that live streaming presented additional risks to officers by alerting untold viewers in present time to the location of the stop thereby creating the potential for a crowd control operation. The Supreme Court had long recognized the inherent dangers of traffic stops for officers and had upheld reasonable time, place and manner restrictions on driver and passenger conduct for purposes of officer safety.
But it was Judge Paul Neimeyer that began a crusade to elevate officer safety to a Fourth Amendment right of police. Less than a minute into Sharpe’s argument, he began interrupting and asking, “What rights does an officer have to maintain control of the circumstances during a traffic stop?”
When Sharpe’s attorney tried to return to a First Amendment argument, Judge Neimeyer continued to interrupt. He argued officers had the “right” under the Fourth Amendment to restrict freedom of movement (order drivers and passengers out of the car, to the curb, and cuff them) and curtail the venerable Second Amendment right – so why not the First Amendment? Sharpe’s attorney and Judge Neimeyer devolved into talking over each other to such a frustrating degree that Judge Julius Richardson intervened and firmly told Sharpe’s attorney, “I think he’s trying to ask you a question. I’m not sure why you’re so excited right now, but I think you want to try to answer his question and not talk over him.”
There was an awkward silence after which Sharpe’s attorney apologized. Decorum returned but the Fourth versus First Amendment crusades persisted through the rest of the proceeding.
What happens next
IMHO, the Fourth Circuit isn’t going to find a First Amendment right for passengers to live stream traffic stops. It’s too big a leap for that circuit (as compared to the Ninth).
Based on one judge’s questions at oral argument about the speculative nature of both the existence of a Winterville Police Department live streaming policy and the threat live streaming presented to the officers, I wouldn’t be surprised if the case got sent back to the District Court for some evidence-taking and fact-finding.
Indeed, it seems odd the case even ended up in District Court. Sharpe was allowed to live stream. A much stronger case would’ve been if he’d heeded Officer Ellis’ words, subsequently created a traffic stop situation, live streamed, had his phone confiscated, and been arrested. And the officers weren’t concerned enough about their safety during the stop to prevent the live streaming.
In the meantime
First, Judge Neimeyer’s unfortunate phrasing regarding “officers’ rights” under the Fourth Amendment is mistaken. The Fourth Amendment grants NO rights to officers. It begins: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …”
Its purpose, as with all the Bill of Rights (the first 10 amendments) is to guarantee individual rights against the power of the government. The test for what individual rights officers may infringe on when searching and seizing is “reasonableness.”
Second, use this case. Get ahead of it tactically and legally. Consider the real dangers of live streaming to officer safety. Be able to articulate them. (It’s not just crowd control. Sharpe’s interacting with his viewers competed with Officer Helms’ communications with him.) Discuss with your local prosecutor whether the articulable dangers warrant a blanket policy or guiding procedures for a case-by-case determination by officers.
It’s just a matter of time before these facts come to a traffic stop and court near you. Be prepared beforehand.
NEXT: Supreme Court holds that failure to Mirandize doesn’t violate a suspect’s Fifth Amendment rights
