The Fourth Circuit judge and attorney are facing a legal standoff over the traffic stoppage on the live broadcast

Appellate oral arguments are usually subject to protocol and decency. Last month’s dusting in the 4th arrondissement was a notable exception. Before checking out what caused the uproar, let’s take a look at the facts that led to it.

Traffic stop

Dijon Sharp was a passenger in a car that was properly stopped for a traffic violation by Winterfell (North Carolina) Police Department officers Helms and Ellis. Sharpe began broadcasting the encounter with Facebook Live on his Facebook account. Helms asked Sharpe if he was doing a Facebook Live and Sharpe said he was. Helms reached into the car for Sharpe’s phone, tightening his seat belt and shirt. Helms explained that Sharpe can’t livestream on Facebook “because that’s an officer safety issue.”

Consider the real risks of live broadcasting to officer safety.  Be able to express it.

Consider the real risks of live broadcasting to officer safety. Be able to express it. (photo/Pexels)

However, Helms did not take Sharpe’s phone. Sharpe continued to broadcast live and send messages with the people watching. Later, Ellis tells Sharpe that he was free to record with the police, adding that the police recorded as well, but he will not be allowed to go live because that allows everyone who followed him online to know where the encounter took place and there may only be one officer at the scene. If Sharpe tried to broadcast on Facebook Live in the future, Ellis said, his phone would be taken, and he would be arrested.

First Amendment to the Crusade

Sharpe filed a lawsuit 42 USC § 1983 alleging that his First Amendment rights were violated by the officers’ actions and the PD’s policy to ban live broadcasts. The allegations involve the town of Winterfell.

In two different orders, the US District Court issued summary judgment to the officers, the department, and the town based on the pleadings. The court concluded that no circuit had previously found that a passenger had the right to broadcast live when traffic had stopped. In addition, the Fourth Circuit did not even decide that the passenger has the right to record the stoppage of the live broadcast, let alone the live broadcast.

Sharpe appealed to a panel of 3 Fourth Circuit judges. In the briefing and oral argument, his attorney said that the decisions of other circuits that found the right to record the traffic stop support finding the right to broadcast it live. He claimed that a public statement regarding an officer’s safety did not override Sharpe’s First Amendment right. Live broadcasts served a strong public and government interest in deterring police misconduct. It will also keep officers safer by deterring behavior against them that will be videotaped.

Sharpe’s First Amendment crusade attracted significant attention from civil liberties and press advocates. Seven girlfriend notes have been submitted to support his claims.

Fourth Amendment Crusade

Attorneys for the officers, the department, and the city noted, in the briefing and in the oral argument, that no case had stated that there was a right to stop traffic. Even within the circuits that found a right of police registration, none addressed a passenger’s right to a traffic point of registration.

The lawyer also argued that the live broadcast presented additional risks to officers by alerting viewers who were currently countless to the station’s location, thus creating the potential for a crowd control operation. The Supreme Court has long recognized the dangers inherent in a traffic stop for officers and has upheld reasonable limits of time, place and manner on driver and passenger behavior for the purposes of officer safety.

But it was Judge Paul Niemeyer who began a crusade to elevate officer safety to a Fourth Amendment right to police. Less than a minute into Sharpe’s argument, he began to interrupt and ask, “What rights does an officer have to maintain control of conditions during a traffic stop?”

When Sharpe’s attorney tried to return to the First Amendment argument, Judge Niemeyer continued to interrupt. He said officers have the “right” under the Fourth Amendment to restrict freedom of movement (ordering drivers and passengers out of the vehicle, restraining and restraining them) and curtailing the venerable Second Amendment right—so why not the First Amendment? Sharpe’s attorney and Judge Niemeyer turned so frustrated into talking to each other 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 about it.” “.

There was an awkward silence, after which Sharpe’s lawyer apologized. Decency returned but the Fourth Crusades vs. the First Amendment continued through the rest of the proceedings.

what happened after that

IMHO, the Fourth Circuit will not find a commuter First Amendment right to stop traffic. It’s a pretty big jump for that circuit (compared to the 9th).

Based on a judge’s questions in an oral argument about the speculative nature of both the existence of the Winterfell Police Department’s live-streaming policy and the threat made to the officers, I wouldn’t be surprised if the case was sent back to district court for some evidence-gathering and fact-finding.

Indeed, it seems odd that the case would end up even in the district court. Sharp was allowed to live. The case would have been much stronger if he had heeded Officer Ellis’ words, then created a traffic stop, livestreamed, confiscated his phone, and been arrested. And the officers weren’t concerned enough about their safety during the stop to prevent the live broadcast.

In the meantime

First, Judge Niemeyer’s unfortunate formulation on “officers’ rights” under the Fourth Amendment is wrong. The Fourth Amendment does not grant any rights to officers. It begins: “The right of the people to be secure in their persons, houses, papers, and baggage, against unreasonable searches and seizures…” shall not be infringed.

Its purpose, as with all of the Bill of Rights (the First Ten Amendments), is to secure individual rights against government power. The test of what individual rights officials might violate in a search and seizure is “reasonableness.”

Second, use this case. Get ahead of it tactically and legally. Consider the real risks of live broadcasting to officer safety. Be able to express it. (It’s not just about crowd control. Sharpe’s interaction with his viewers rivaled Officer Helms’ communications with him.) Discuss with the district attorney whether the perceived risks warrant a comprehensive policy or directive action for case-by-case determination by officers.

It is only a matter of time before these facts stop passing by and court is near you. Be prepared in advance.

Next: The Supreme Court holds that the Mirandez fiasco does not violate the suspect’s Fifth Amendment rights

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