RICHMOND, Va. (CN) — A three-judge panel of the Fourth Circuit heard lively arguments Thursday over whether officers have the right to prevent passengers from livestreaming traffic stops.
Dijon Sharpe was riding in a car that was pulled over in Winterville, North Carolina, in 2018 when he decided to broadcast the police interaction in real time on Facebook Live.
According to a nine-page complaint he filed in federal court the following year, “Sharpe is a Black male who records and broadcasts his interactions with law enforcement for his own protection.”
Sharpe says his First Amendment rights were violated when he was physically attacked by a Winterville officer after disclosing he was livestreaming the stop, and when he was threatened with arrest by another officer if he attempted to broadcast such interactions in the future.
The district court dismissed Sharpe’s lawsuit, finding it was not clearly established at the time of the incident that a passenger in a stopped vehicle has a constitutional right to record and livestream the interaction.
Sharpe’s attorneys disagree and said in their brief to the Fourth Circuit that by October 2018, “it was clearly established nationwide that individuals have a First Amendment right to record police officers in the discharge of their duties in public. It was also clearly established that such right includes the right to disseminate those recordings in real time.”
Attorney Andrew Tutt of Arnold & Porter, who represented Sharpe during oral arguments on Thursday, said the district court was wrong.
“This case raises questions that strike the very heart of the First Amendment’s most important protections,” he said.
Tutt began to tell the three-judge panel for the Fourth Circuit that the right to film police officers in public is a clearly established First Amendment right, but he was hastily interrupted by U.S Circuit Judge Paul Niemeyer, a George H.W. Bush appointee.
“The briefs on both sides spent a lot of time talking about a First Amendment right to photograph police work in public whether by the press or friends or other people watching, and cases seem to support a First Amendment claim there. And the debate in the brief seemed to be whether the Fourth Circuit ought to do that, and my question is whether that’s relevant at all,” the judge said.
Neimeyer said he thinks the dispute actually arises from the Fourth Amendment, under which passengers and drivers are subject to the same level of police control during a stop.
The difference here, Tutt responded, is that Sharpe was “merely broadcasting passively.” He said the officers had no specific or articulable reason to demand the passenger to stop broadcasting, and that there was no governmental interest in doing so.
Interrupting Tutt several times to reformulate his question, Neimeyer asked, “What rights does an officer have to maintain control of the circumstances during a traffic stop?”
Neimeyer’s line of questioning devolved into a period of the judge and attorney talking over each other in increasingly irritated tones until the voice of U.S. Circuit Judge Julius Richardson cut through the noise.
“I think he’s trying to ask you a question,” Richardson, a Donald Trump appointee, told the attorney. He sternly added, “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.”
An apology from Tutt followed a brief, stunned silence in the courtroom.
Neimeyer asked how limiting passenger livestreaming might benefit the safety of officers, but continued to interrupt the attorney until his time was up.
“As I think your honors have recognized through questioning, this is not a case about whether there is a general right to record police officers in their public duties," said attorney Dan Hartzog Jr., who represented the Winterville officers during the hearing.
He added, "That is simply not before the court. What is before the court is the right of a passenger in a seized vehicle in a lawfully stopped traffic stop to livestream the encounter from within the vehicle."
He said that, in this case, there is an intersection of the First and Fourth Amendments.
U.S. District Judge Michael S. Nachmanoff, an appointee of President Joe Biden sitting by designation from the Eastern District of Virginia, asked Hartzog whether every traffic stop can become one in which the individuals are asked to get out of their car.
“I think the general case law in this, your honor, is that the inherent dangerousness of traffic stops is long recognized by the Supreme Court not based on the fact that, well this is just a minor traffic stop, but based on the potential for the traffic stop to turn into a more serious, potentially deadly, violent encounter,” Hartzog responded.
Nachmanoff pressed, “So the mother of five small children is pulled over for running through the stop sign can be viewed as potentially dangerous and asked to be stepped out of the car and frisked, because she might be armed?”
The attorney responded “it is a matter of reasonableness” and proceeded to defend the position that this is a Fourth Amendment and not a First Amendment case.
Joseph McGuinness, representing the Southern States Police Benevolent Association, filed a motion earlier this year to intervene in the case and participate in the arguments.
“Officers have legal duties, responsibilities and protocols to follow, and what they are taught and trained is to look at these two things that God gave us, the hands, and things that are in those hands, especially when it is a metal object like a cellphone that can be and has been used as weapons,” he told the panel.
However, his group argues that recording should be allowed as long as it is not live broadcasting. They cited concerns that a livestreamer might call local gang members to come attack officers on the scene.
The purpose of livestreaming a stop is to hold everyone at the scene accountable, Tutt said during rebuttal.
He explained that Sharpe’s interest when it comes to livestreaming “is both fear and actually deterring wrongdoing by the officers.”
“It helps to allay that anxiety that individuals feel when they are in a traffic stop with police officers and they don’t know what those officers are going to do. There are people who fear the police. It's just an unfortunate fact,” Tutt said.
The judges did not indicate when a decision will be made.
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