US Appeals Court rules Winterville traffic stop livestreaming ban could violate First Amendment | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    A federal Appeals Court panel has ruled that a Winterville police policy against livestreaming of traffic stops could violate the First Amendment. The ruling reverses a trial court decision favoring the town.

    A concurring opinion questions whether a livestreaming ban would present a clear-cut First Amendment violation. The concurring judge emphasized competing First and Fourth amendment issues.

    The full three-judge panel from the 4th U.S. Circuit Court of Appeals affirmed the trial court's decision that a police officer involved in the traffic stop could not be sued as an individual.

    Plaintiff Dijon Sharpe sued the Winterville Police Department and two officers after one officer, Myers Helms, tried to block Sharpe from streaming a traffic stop on Facebook Live in October 2018. Sharpe was a passenger in the car.

    "Officer Helms noticed this activity and attempted to take Sharpe's phone, reaching through Sharpe's open car window," wrote Judge Julius Richardson. "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. The officers also made it clear that if Sharpe tried to livestream a future police encounter, he would have his phone taken away or be arrested."

    Sharpe's suit targeted Winterville "for allegedly having a policy that prohibits recording and livestreaming public police interactions in violation of the First Amendment." A District Court judge rejected Sharpe's arguments about the town policy. The judge also ruled that qualified immunity barred Sharpe from suing Helms individually.

    "Sharpe plausibly alleges that the Town of Winterville has a policy preventing someone in a stopped vehicle from livestreaming their traffic stop," Richardson wrote. "If that policy exists, it reaches protected speech. So to 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. So Sharpe's claim that the Town's livestreaming policy violates the First Amendment survives."

    Appellate judges agreed the case requires further action in a trial court.

    "Recording police encounters creates information that contributes to discussion about governmental affairs," Richardson wrote. "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."

    Winterville should have a chance to defend its policies. "[T]he Town's speech regulation only survives First Amendment scrutiny if Defendants demonstrate that: (1) the Town has weighty enough interests at stake; (2) the policy furthers those interest; and (3) the policy is sufficiently tailored to furthering those interests," Richardson wrote.

    The town has argued for protecting police officers' safety. "This officer-safety interest might be enough to sustain the policy. But on this record we cannot yet tell," Richardson wrote. "There is 'undoubtedly a strong government interest' in officer safety. And risks to officers are particularly acute during traffic stops. But even 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."

    U.S. District Judge Michael Nachmanoff joined Richardson's opinion. Judge Paul Niemeyer agreed to send the case back to a trial court, but he wrote a concurring opinion.

    "[T]he 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, including First Amendment rights," Niemeyer wrote. "Yet, the issues in this case arose in the context of a lawful Fourth Amendment seizure - a traffic stop - during which a person seized refused to obey the order of law enforcement officers to cease using a cell phone to communicate with others during the course of the stop."

    "The restriction on cell-phone use was thus an aspect of the seizure, and therefore the lawfulness of the restriction is regulated by the Fourth Amendment and its jurisprudence recognizing that, when conducting traffic stops, law enforcement officers may intrude on the liberty interests of those who have been stopped, so long as the intrusion is reasonable," he added.

    "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 explained. "This is a nuanced, but meaningful, adjustment to the issue addressed in the majority opinion, which is whether restrictions on electronic communications of persons detained are justified under a traditional, free-standing First Amendment analysis."

    The case Sharpe v. Winterville Police Department will return to the U.S. District Court for the Eastern District of North Carolina.