Fourth Circuit Latest To Say Filming Cops Is Protected By The First Amendment

The Supreme Court - years after the ubiquity of cell phones and their cameras - has yet to provide nationwide guidance on a topic that should be considered settled: the right to record public officials while they engage in their public duties.

If cops can assert anything happening on a public street has no reasonable expectation of privacy, the stakeholder that actually has rights (i.e., the general public) should be able to assert the same thing. But courts have sided with cops and against the public for years, granting credence to inapplicable wiretap and two-party consent laws to pretend the government has more of a right to record public activities than the actual public.

The Supreme Court won't be able to keep ignoring this issue for long, even if its handling may result in a declaration that opposes the findings of several appellate courts. While we wait for the inevitable (and perhaps inevitably terrible) decision from the nation's top court, we'll have to satisfy ourselves with lower precedent that, at the very least, clearly establishes a First Amendment right to record in that jurisdiction.

The Fourth Circuit has added to the body of legal precedent establishing a right to record cops. At the center of the case is North Carolina resident Dijon Sharpe, who was confronted by a police officer who attempted to take his phone away while he live-streamed his own traffic stop.

Officers Myer Helms and William Ellis were involved in the traffic stop. Officer Helms was named directly in the lawsuit. Both made an insanely ridiculous assertion while trying to prevent Sharpe from recording the stop. This is from the Fourth Circuit decision [PDF]:

Officer Helms noticed this activity and attempted to take Sharpe's phone, reaching through Sharpe's open car window. [J.A. 9, 55, 75.] Officer Helms and his partner Officer William Ellis then told Sharpe he could record the stop but could not stream it to Facebook Live because that threatened officer safety.

Neither officer bothered to explain how a livestream threatened officer safety while an immediate release of the same recording directly following the stop would not. That's probably because there's no difference between the two, unless you have an overactive imagination and/or a desire to intimidate someone out of their First Amendment rights. The officers added stupid insult to stupid constitutional injury by claiming Sharpe's phone would be arrested and/or have his phone seized if he tried to livestream any traffic stops in the future.

The officers were sued directly, along with their employer, the Winterville Police Department. The Appeals Court reverses the lower court's dismissal of Sharpe's lawsuit, stating there is definitely (and precedentially) a right to record (or, in this case, livestream) police officers engaged in their public duties.

At the center of this case is Sharpe's allegation that the officers' actions were prompted by PD policy:

(1) Officer Helms tried to seize his phone upon learning Sharpe was streaming to Facebook Live; (2) Officer Ellis said that in the future if Sharpe broadcasts on Facebook Live his phone will be taken from him and, if Sharpe refuses to give up his phone, he will go to jail; and (3) both officers justified their efforts to prevent livestreaming using the same officer-safety rationale. It is a reasonable inference that absent a policy the two officers would not have taken the same course, for the same reason, nor would those officers have known in advance that Sharpe would face the same treatment if he tried to livestream another officer in the future.

This is a plausible allegation, says the Fourth Circuit. Sharpe's suit remains alive to pursue this allegation. This reversal ensues even though the officers raised (ridiculous) claims livestreaming allowed people to track cops and presumably threaten their safety while performing stops. This claim was buttressed by none other than a police union, the sort of entity willing to sign off on any argument, no matter how ridiculous, that might allow officers to walk away from lawsuits and back to their day-to-day constitutional violations.

According to Defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. They support this claim by arguing, with help from amici, that violence against police officers has been increasing-including planned violence that uses new technologies. [See, e.g., Amicus Brief of the Southern States Police Benevolent Association at 9.] On Defendants' view, banning livestreaming prevents attacks or related disruptions that threaten officer safety.

All well and good, I guess. But if the officers (and their union) really want to develop this line of thinking, they should stay engaged with the lawsuit, rather than seek an early exit.

But an early exit was sought. And, unfortunately, this limited reversal allows Officer Helms to escape the lawsuit.

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. The district court was thus correct to dismiss the 1983 claim against him in his individual capacity.

All applicable precedent dealt with someone other than a car's driver or passenger filming a traffic stop, rather than the subject of the traffic stop themselves. Given the lack of controlling precedent specific to this case, the officer is immune from this suit.

But the suit is still alive, allowed to go forward to determine whether or not the PD has implemented policies that violate the First Amendment when it comes to recording police officers.

But this mixed bag of an opinion does deliver one solid good: the First Amendment right to record cops is now firmly established in this circuit:

Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record. We thus hold that livestreaming a police traffic stop is speech protected by the First Amendment.

Dijon Sharpe may ultimately lose this lawsuit. But he has obtained a win for everyone else located in this jurisdiction. It may not be the redress he's seeking, but he has made things better for millions of people by obtaining precedent that firmly establishes a right to record.