Virginia Lawyers Weekly VA Lawyers Weekly
Where a passenger in a vehicle plausibly alleged that the Town of Winterville had a policy that prevents a passenger from livestreaming their traffic stop, and such a policy violated the passenger’s First Amendment rights, his suit against the town was improperly dismissed. Because the law was not clear at the time the town police officer stopped the livestreaming, however, the officer was entitled to qualified immunity.
Background
This case asks whether a town’s alleged policy that bans video livestreaming certain interactions with law enforcement violates the First Amendment. It also asks whether a police officer who, during a traffic stop, attempted to stop a passenger from livestreaming the encounter may be successfully sued under § 1983 for violating the passenger’s First Amendment rights.
The passenger in question, Dijon Sharpe, sued under 42 U.S.C. § 1983. He sued the officers in their official capacities — effectively suing the Town of Winterville — for allegedly having a policy that prohibits recording and livestreaming public police interactions in violation of the First Amendment. He also sued Officer Helms in his individual capacity.
The district court awarded defendants judgment on the pleadings after finding that the policy, as alleged, did not violate the First Amendment. And the court dismissed the individual-capacity claim against Helms as barred by qualified immunity.
Analysis
For his claim against the town to survive the pleading stage, Sharpe need only plausibly allege (1) that the town has a policy preventing a passenger from livestreaming their traffic stop and (2) that such a policy violates his First Amendment rights. He has done so.
Sharpe has alleged that the town has a policy that prohibits an occupant from livestreaming their own traffic stop. He supports his allegation by asserting: (1) one officer tried to seize his phone upon learning Sharpe was streaming to Facebook Live; (2) another officer 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.
Sharpe has met his initial burden by showing that the alleged policy restricts his protected speech. Creating and disseminating information is protected speech under the First Amendment. And other courts have routinely recognized these principles extend the First Amendment to cover recording — particularly when the information involves matters of public interest like police encounters.
As such, the 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. According to defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. 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. Nor is that gap filled here by common sense or caselaw. So this court cannot conclude, at this stage, that the policy survives First Amendment scrutiny.
Qualified immunity
Qualified immunity protects 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 Helms’s actions were unconstitutional. The district court was thus correct to dismiss the § 1983 claim against him in his individual capacity.
Vacated in part, affirmed in part and remanded.
Concurring opinion
Niemeyer, J., concurring in the judgment:
I write separately because the 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. 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.
Sharpe v. Winterville Police Department, Case No. 21-1827, Feb. 7, 2023. 4th Cir. (Richardson), from EDNC at Raleigh (Dever). Andrew Tutt for Appellant. Dan M. Hartzog Jr. for Appellees. Joseph Michael McGuinness for Amicus The Southern States Police Benevolent Association. VLW 023-2-032. 23 pp.
