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Americans have the right to livestream police traffic stops … probably

Handy thing, that First Amendment. Now, about the Second …

The US Fourth Circuit Court of Appeals has ruled that a North Carolina police department policy prohibiting the livestreaming of traffic stops is unconstitutional unless the department can support its claim that broadcasting endangers officers.

In October, 2018, Dijon Sharpe was riding in the passenger seat of a car pulled over in a traffic stop by police from Winterville, North Carolina. He chose to livestream the encounter to Facebook Live because, as court documents [PDF] explain, ten months prior in nearby Greenville he had been beaten by police after the car he was riding in was pulled over.

The two Winterville police officers being recorded, Myers Helms and William Ellis, objected to Sharpe's streaming. Helms tried unsuccessfully to take Sharpe's phone away by reaching in through the car's open window, which could in of itself constitute a violation of Sharpe's Fourth Amendment rights.

The two officers then "told Sharpe he could record the stop but could not stream it to Facebook Live because that threatened officer safety," and indicated Sharpe would be arrested and have his phone seized if he streamed a future encounter with police.

Sharpe sued the officers in their official capacity, alleging the police department's recording policy violates the First Amendment, and officer Helms individually, also alleging a constitutional rights violation.

In 2019, a federal court in the Eastern District of North Carolina dismissed Sharpe's claims in two separate opinions. So Shape appealed – supported by the Electronic Privacy Information Center, the Electronic Frontier Foundation, the Cato Institute, the American Civil Liberties Union, the Institute for Justice, the National Police Accountability Project, and the National Press Photographers Association.

On Tuesday, the Fourth Circuit vacated a portion of the lower court's decision that found the Winterville Police Department's livestreaming prohibition acceptable. But it upheld the lower court's finding that Helms could not be held personally liable for violating Sharpe's rights under the qualified immunity afforded to police.

"Recording police encounters creates information that contributes to discussion about governmental affairs," the Fourth Circuit decision [PDF] states. "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."

EFF legal fellow Mukund Rathi told The Register that this is a mixed decision. "The court pretty quickly held that the First Amendment protects livestreaming. We are concerned, however, about the court's holding on qualified immunity. We've said it should not apply in situations like these and the courts are applying it too broadly."

The appeals court has sent the case back to the lower court. Sharpe's claim against the Winterville Police Department can proceed, but the town will have the opportunity to argue that prohibiting livestreaming is necessary to protect the safety of officers.

The Southern States Police Benevolent Association, a police union, evidently failed to sway the appeals court with its argument [PDF] that livestreaming – "a tool for agitating a mob or summoning partners in crime into immediate action during an ongoing police operation at a police stop or incident scene" – so imperils police that it must be disallowed during traffic stops.

Riana Pfefferkorn, a research scholar at the Stanford Internet Observatory, voiced support for the appellate decision in an email to The Register.

"This decision is a victory in the ongoing push for greater police accountability, as it vindicates citizens' First Amendment right to document and share police stops in real time," said Pfefferkorn.

Pfefferkorn opined that "the flimsy 'officer safety' rationale asserted in this case for banning livestreaming police interactions rings hollow, given that crowds are just as capable of assembling around, say, a police stop on a busy street that is not being livestreamed, or a stop that is being live-tweeted but not streamed. Indeed, Derek Chauvin might never have been brought to justice had a crowd not assembled around, and a bystander not recorded, his murder of George Floyd."

Pfefferkorn, however, expressed disappointment that qualified immunity has once again prevented a police officer from being held accountable for a constitutional rights violation.

"That said, the decision will make it far more difficult for future officers to invoke qualified immunity in similar situations," she said. "The police are now on notice of what should have been clear all along: Americans have a right to film their interactions with the officers who are sworn to protect and serve them. Meanwhile, ending qualified immunity doctrine remains the greater goal." ®

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