Live-streaming the cops.

I've been a cop for almost a quarter century, and I've never had an issue with someone using their camera phone on me, as long as it's from a safe distance. I was once conducting a DWI investigation and a friend of the driver got up close and said, "I'm recording this..." I instructed her to get on the sidewalk and record all she wants. She refused at first and after explaining she had ten seconds to move her ass until I arrested her for Walking in street where sidewalk provided (Yes, that is a city ordinance), she finally backed down.

Now I must say this is an interesting angle to this concept. You're not recording a police encounter, you are live broadcasting it. And that may invite others to try to interfere.  

Fourth circuit judge and lawyer face off in legal smackdown over live streaming traffic stops

Argument pits First Amendment rights against Fourth Amendment reasonableness

The traffic stop Consider the real dangers of live streaming to officer safety. Be able to articulate them. 

Appellate oral arguments are normally governed by protocol and decorum. A dustup last month in the Fourth Circuit was a notable exception. Before checking out what the brouhaha was about, let’s look at the facts that led to it.

Dijon Sharpe was a passenger in a car properly stopped for a traffic violation by Winterville (North Carolina) Police Department Officers Helms and Ellis. Sharpe began live-streaming the encounter with Facebook Live to his Facebook account. Helms asked Sharpe if he was doing Facebook Live and Sharpe said he was. Helms reached inside the car for Sharpe’s phone, pulling on his seat belt and shirt. Helms explained Sharpe couldn’t do Facebook Live “because that’s an officer safety issue.”

However, Helms didn’t take Sharpe’s phone. Sharpe continued to live stream and message with people watching. Later, Ellis told Sharpe he was free to record the police, adding that the police recorded also, but he wouldn’t be allowed to live stream because that let everyone who followed him online know where the encounter was occurring and there might be just one officer on scene. Ellis said if Sharpe tried to Facebook Live in the future, his phone would be taken, and he would be arrested.

Sharpe filed a 42 U.S.C. § 1983 lawsuit alleging his First Amendment rights were violated...

In two different orders, the U.S. District Court granted summary judgment to the officers, department and town based on the pleadings. The court concluded no circuit had previously found a passenger had a right to live stream a traffic stop. Additionally, the Fourth Circuit had not even decided a passenger had a right to record, let alone live stream a stop.

Sharpe appealed to a 3-judge panel of the Fourth Circuit. In briefing and oral argument, his attorney said other circuits’ decisions that found a right to record traffic stops supported finding a right to live stream them. He contended a generalized statement regarding officer safety did not override Sharpe’s First Amendment right. Live streaming served a strong public and governmental interest in deterring police misconduct. It would also keep officers safer by deterring conduct against them which would be captured on video.

Sharpe’s First Amendment crusade drew significant attention from civil liberties and press advocates. Seven amicus briefs were filed in support of his claims. 

Counsel for the officers, the department and the town, in briefing and at oral argument, pointed out the lack of any case that held there was a right to live stream traffic stops. Even within the circuits that found a right to record police, none addressed the right of a passenger in a traffic stop to record.

Counsel also argued that live streaming presented additional risks to officers by alerting untold viewers in present time to the location of the stop thereby creating the potential for a crowd control operation. The Supreme Court had long recognized the inherent dangers of traffic stops for officers and had upheld reasonable time, place and manner restrictions on driver and passenger conduct for purposes of officer safety.

With the advent of flash mobs, etc, by way of instant video communications, this is an issue I'd never thought of. But it makes sense, I've had incidents on the street where things got tense quickly and people who have no dealing with the people being handled by the cops show up. All of a sudden two cops and four people in a car become two cops, four people in a car, and 20-30 people on the sidewalk. 

But it was Judge Paul Neimeyer that began a crusade to elevate officer safety to a Fourth Amendment right of police. Less than a minute into Sharpe’s argument, he began interrupting and asking, “What rights does an officer have to maintain control of the circumstances during a traffic stop?”

To answer the question, the officer has no right to maintain control. He has the legal authority granted to him by the state to control a crime scene. Call me a bit particular about that point, but rights do not come because of a badge, but you are "endowed by your Creator," with them. 

That being said, the officer had the authority and duty to maintain control of a potentially hostile scene, with any legal means. If there is an issue with the auto driver/passengers, get back up. If people living in the area show up and may cause a problem, get more back up. If the natives are getting restless, call for backup. Twenty civilians see ten cops back up the original two, they will likely get calmer. Showing the flag if you will.

I have no doubt this will be heading to the Supreme Court in the future. Something like this can easily be split decisions by two district courts (i.e., the 9th Circus in California and the 5th Circuit in Louisiana). Once that happens, SCOTUS almost immediately takes the case to settle the matter. I'll keep an eye on this in the future.