The Fourth Circuit Judge and Attorney are locked in a legal battle over live-streaming traffic disruptions

Oral appeal procedures are usually governed by protocol and decency. A dust cloud last month on the fourth circuit was a notable exception. Before we look at 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 duly stopped for a traffic violation by Winterville, North Carolina Police Officers Helms and Ellis. Sharpe began broadcasting the encounter with Facebook Live on his Facebook account. Helms asked Sharpe if he did Facebook Live and Sharpe said yes. Helms grabbed Sharpe’s phone in the car and pulled on his seat belt and shirt. Helms explained that Sharpe couldn’t do Facebook Live “because it’s a security issue for officers.”

Consider the real dangers of live streaming to officer safety.  you can articulate.

Consider the real dangers of live streaming to officer safety. you can articulate. (Photo/Pexels)

However, Helms did not take Sharpe’s phone. Sharpe continued to live stream and message while people watched. Ellis Sharpe later said he was free to record the police, adding that the police were also recording, but he would not be allowed to livestream because that would let anyone who followed him online know where the encounter took place, and there might only be one officer on site. Ellis said if Sharpe tried to use Facebook Live in the future, his phone would be stolen and he would be arrested.

The First Amendment Crusade

Sharpe filed a lawsuit under 42 USC § 1983, alleging that his First Amendment rights were violated by the officers’ actions and the PD’s policy of banning live streaming. The claims included the city of Winterville.

In two separate orders, the US District Court granted summary judgment to the officials, the department and the city based on the briefs. The court concluded that no county had previously determined that a passenger had the right to live stream a traffic incident. What’s more, the Fourth Circle hadn’t even ruled that a passenger had the right to record a stop, let alone stream it live.

Sharpe appealed to a three-judge panel of the Fourth Circuit. At a briefing and hearing, his attorney said other circles’ decisions providing a right to record traffic stops supported the quest for a right to stream them live. He claimed that a generalized statement about 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 increase officers’ security by deterring behavior against them that would be caught on video.

Sharpe’s First Amendment crusade drew significant attention from civil rights activists and members of the press. Seven amicus briefs were filed in support of his claims.

The Fourth Amendment Crusade

The attorney for officers, the department and the city pointed out the lack of a right to live-stream traffic stops at the briefing and hearing. Even within the circles that found a right to police records, none addressed the right of a passenger at a traffic stop to be recorded.

The attorney also argued that live streaming posed additional risks for officers as countless viewers would be alerted to the location of the stop in the presence, creating the potential for a crowd control operation. The Supreme Court had long recognized the inherent dangers of traffic delays to officials and maintained reasonable time, place and type restrictions on the behavior of drivers and passengers for the sake of officials’ safety.

But it was Judge Paul Neimeyer who began a crusade to make officer safety a Fourth Amendment police law. Less than a minute after Sharpe’s argument, he began to interrupt and ask, “What rights does an officer have to remain in control of circumstances during a traffic delay?”

When Sharpe’s attorney attempted to return to a First Amendment argument, Judge Neimeyer continued to interrupt. He argued that officials had the Fourth Amendment “right” to restrict movement (order drivers and passengers out of cars to the curb and handcuff them) and to restrict the venerable Second Amendment right—so why not the First Amendment ? Sharpe’s attorney and Judge Neimeyer began talking to each other so frustratingly that Judge Julius Richardson intervened and Sharpe’s attorney said firmly, “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 overplay him.”

There was an awkward silence after which Sharpe’s attorney apologized. Decorum returned, but the Fourth’s crusades against the First Amendment continued through the remainder of the trial.

What happens next

In my opinion, the Fourth Circuit will not find a First Amendment right for passengers to live stream traffic stops. It’s too big a jump for this circuit (compared to ninth).

Based on a judge’s questions at the hearing about the speculative nature of both the existence of a Winterville Police Department live-streaming policy and the threat of live-streaming to officers, I wouldn’t be surprised if the case were remanded to the district court would do for some evidence and fact finding.

In fact, it seems strange that the case even ended up in the district court. Sharpe was allowed to stream live. A much stronger case would have been if he heeded Officer Ellis’ words, subsequently created a traffic stop situation, streamed live, had his phone confiscated and arrested. And officials weren’t concerned enough for their safety during the stop to stop the live streaming.

In the meantime

First, Judge Neimeyer’s unfortunate wording regarding the “rights of officials” under the Fourth Amendment is incorrect. The Fourth Amendment does NOT grant any privileges to officers. It begins with the words: “The right of the people to the protection of their persons, their home, their papers and their property from improper search and seizure shall not be violated…”

Its purpose, as with all Bills of Rights (the first 10 amendments), is to guarantee individual rights against government power. The test of what personal rights officers can violate in search and seizure is “reasonableness”.

Second, use this case. Get ahead of him tactically and legally. Consider the real dangers of live streaming to officer safety. you can articulate. (It’s not just crowd control. Sharpe’s interaction with his viewers competed with Officer Helms’ communication with him.) Discuss with your local district attorney whether the articulate threats require a blanket guideline or guiding procedure for a case-by-case determination by the justify officials.

It’s only a matter of time before these facts make their way to a traffic stop and court in your area. Prepare beforehand.

NEXT: The Supreme Court holds that failure to mirandize does not violate a suspect’s Fifth Amendment rights


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