In this still taken from a bystander’s video recording, Larry Lomax, center on ground, is grabbed by a police officer after being pepper-sprayed in May 2015.RICHMOND, VA – The 4th U.S. Circuit Court of Appeals declared that a town’s ban on livestreaming certain interactions may not survive First Amendment scrutiny, and that a plaintiff who was barred from livestreaming an interaction due to the policy “plausibly alleged” a constitutional violation.
“Defendants have thus far failed to establish that the alleged livestreaming policy is sufficiently grounded in, and tailored to, strong governmental interests to survive First Amendment scrutiny,” Judge Julius N. Richardson of the 4th U.S. Circuit Court of Appeals wrote.
The court further found that because the law was unclear at the time of the traffic stop in question, the officer’s actions were protected by qualified immunity, affirming the decision of the lower court.
Richardson authored the opinion in Sharpe v. Winterville Police Department (VLW 023-2-032) and was joined by U.S. District Judge Michael S. Nachmanoff from the Eastern District of Virginia, who sat by designation on the case.
Fourth Circuit Judge Paul V. Niemeyer authored an eight-page concurring opinion, noting that the majority opinion “hardly acknowledges the role of the Fourth Amendment in the relevant analysis and the relationship of the Fourth Amendment to other constitutionally protected rights.”
Shortly after the vehicle he was in was pulled over, Dijon Sharpe started streaming to Facebook Live, a livestreaming video platform. Upon noticing this, Myers Helms of the Winterville Police Department in North Carolina attempted to take Sharpe’s phone, “reaching through Sharpe’s open car window.”
Helms and his partner informed Sharpe that he was allowed to record the stop but could not stream to Facebook Live because of concerns surrounding officer safety. The officers further stated that Sharpe could be arrested or have his phone taken away if he livestreamed a future encounter with police.
Sharpe sued the officers in their official capacities, “effectively suing the Town of Winterville,” alleging the policy prohibiting livestreaming police encounters violates the First Amendment of the U.S. Constitution. Sharpe further sued Helms in his individual capacity.
At trial, the district court found the policy did not violate the First Amendment and awarded the defendants judgment on the pleadings. The court further found the suit against Helms in his individual capacity was barred by qualified immunity.
First Amendment claim
Richardson said Sharpe plausibly alleged the town of Winterville has a policy barring livestreaming of traffic stops, a policy which he stated “reaches protected speech.”
“[T]o survive First Amendment scrutiny, the Town needs to justify the alleged policy by proving it is tailored to weighty enough interests. The Town has not yet met that burden,” the judge wrote.
Richardson noted that for Sharpe’s claim to survive, he only needs to plausibly allege that the policy preventing livestreaming exists and that the policy violates the First Amendment. The mere facts of the case, including that the officers attempted to seize his phone upon learning Sharpe was livestreaming, were sufficient to meet the first prong, the judge explained.
As to the second point, “creating and disseminating information is protected speech under the First Amendment,” Richardson pointed out.
“[O]ther courts have routinely recognized these principles extend the First Amendment to recording — particularly when the information involves matters of public interest like police encounters,” he wrote.
The judge said recording police encounters contributes to discussions on government affairs, with livestreaming being one way to disseminate that information.
The town of Winterville claimed that livestreaming a traffic stop “endangers officers because viewers can locate the officers and intervene in the encounter,” and represents a “weighty enough interest” to justify the policy.
But Richardson said that, at this stage, the court “cannot yet tell” if the interest is enough to sustain the policy.
“[E]ven though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw,” he wrote.
After determining the first claim survived, Richardson turned to the individual-capacity claim against Helms, which the lower court barred due to qualified immunity.
Richardson agreed with that holding from the lower court.
“Qualified immunity protects Officer Helms unless it was clearly established at the time of the traffic stop that forbidding a passenger from livestreaming their own traffic stop violated the First Amendment. Here, no precedent in this Circuit nor consensus of authority from the other Circuits established that Officer Helms’s actions were unconstitutional,” he wrote.
After making that determination, Richardson vacated the lower court ruling on the official-capacity claim, affirmed the ruling on the individual-capacity claim and remanded the case for further proceedings.
Niemeyer agreed that the officer was entitled to qualified immunity.
However, he noted that the issues here arise “in the context of a lawful Fourth Amendment seizure – a traffic stop.”
During this stop, Sharpe refused to obey police orders to stop using his cell phone to communicate with others.
The judge explained that the restriction on using a cell-phone “was thus an aspect of the seizure.” As the Fourth Amendment regulates the legality of that restriction, officers, when conducting traffic stops, “may intrude on the liberty interests of those who have been stopped” as long as it is reasonable.
“The issue therefore should be restated, I submit, to whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit the person detained from conducting electronic communications with others,” Niemeyer wrote. “This is a nuanced, but meaningful, adjustment to the issue addressed in the majority opinion …. While the two analyses might, but need not, lead to the same conclusion, I believe that we should apply the reasonableness test of the Fourth Amendment because the restrictions about which the plaintiff complains were imposed as a part of a lawful Fourth Amendment seizure.”