Livestreaming a Traffic Stop Recognized as a Constitutional Right by the Fourth Circuit
Is there a First Amendment right to livestream a traffic stop? The Fourth Circuit recently wrestled with this issue in the case Sharpe v. Winterville Police Department, 59 F.4th 674 (4th Cir. Feb. 7, 2023). The case arose from a traffic stop by officers with the Winterville Police Department on a vehicle occupied by plaintiff Dijon Sharpe. Plaintiff livestreamed the traffic stop on Facebook Live. The police officers noticed this and told Plaintiff he could record the stop but could not livestream it for officer safety purposes. The officers did not take Plaintiff’s phone away and did not stop him from continuing to livestream, but warned him, should it be done in the future, he could be arrested and have his phone taken away.
Plaintiff sued the officers in their official capacities (effectively suing the town) and one officer in his individual capacity for violating his constitutional rights under 42 U.S.C. § 1983. The United States District Court for the Eastern District of North Carolina dismissed Plaintiff’s official capacity claims because the policy did not violate the First Amendment. The District Court also dismissed the individual capacity claims, finding the officer was entitled to qualified immunity because livestreaming a traffic stop was not a clearly established constitutional right. Plaintiff appealed the dismissal.
Official Capacity Claim. To survive dismissal, Plaintiff must plausibly allege in the pleadings that the Town had a policy or custom which violated his First Amendment rights. If this is adequately pled, then the burden shifts to the Town to show the speech restriction was constitutionally permissible. To meet this burden, record evidence must show (1) the defendants have weighty enough interests at stake; (2) the policy furthers those interests; and (3) the policy is sufficiently tailored to furthering those interests.
In its majority opinion, the Fourth Circuit determined Plaintiff plausibly met his pleading burden. First, Plaintiff alleged the existence of a policy that prohibits occupants from livestreaming traffic stops. Next, the Fourth Circuit held the First Amendment protected this action. The Fourth Circuit held, “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.” With that established, the Fourth Circuit looked to the defendants to determine whether the policy restricting livestreaming was constitutionally permissible.
The defendants argued officer safety justified the policy as a permissible constitutional limitation. Although the Fourth Circuit noted there was “undoubtedly a strong government interest” in officer safety which “might be enough to sustain the policy,” it determined the record at this stage in the case did not adequately support this finding. As a result, the Fourth Circuit reversed the dismissal of the official capacity claim. The Fourth Circuit did not foreclose the possibility that such evidence could be established which would warrant dismissal.
Judge Niemeyer filed a separate opinion, concurring in the judgment. He acknowledged and endorsed the application of the Fourth Amendment reasonableness test to limits on livestreaming during a traffic stop. He noted other seizures performed during a traffic stop, such as seizing firearms, implicates the Second Amendment, yet courts traditionally conduct a Fourth Amendment analysis to determine if the restrictions are reasonable.
Individual Capacity Claim. A government official sued in their individual capacity may be protected by qualified immunity if evidence shows “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). In determining whether qualified immunity is proper, the court determines “whether a constitutional violation occurred” and “whether the right violated was clearly established” at the time of the official’s conduct. Melgar ex rel. Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010).
The Fourth Circuit noted there was no controlling authority through previous cases in the Fourth Circuit nor any consensus of persuasive authority through other jurisdictions which establishes the First Amendment right for a passenger to livestream their own traffic stop. The Fourth Circuit distinguished the constitutional right to livestream versus regular recording the police, finding only the latter has been clearly established by the Fourth Circuit as a First Amendment right. As a result, the Fourth Circuit affirmed dismissal of the individual capacity claim through qualified immunity.
Analysis. The Fourth Circuit’s opinion sent the case back to the District Court to determine whether the policy, although it infringed on First Amendment rights, was constitutionally permissible. It will be interesting to see what evidence the defendants rely on in proving officer safety warrants permissible encroachment of Plaintiff’s constitutional rights. Local governments should notify their law enforcement agencies, in light of this case, livestreaming a traffic stop will be considered a clearly established constitutional right that cannot be infringed upon without a specific articulable reason for limiting the protected activity.
Teague Campbell’s Public Sector Services team and group of experienced local government litigators are available to discuss how this opinion impacts your departments.