DISCLAIMER: I am not an attorney, and nothing in this article should be considered legal advice. The content of this post is my opinion based on my experience as a police officer and my understanding of constitutional law.

Today I read an article on Police 1 about an interesting case in the United States Fourth Circuit Court of Appeals. The case involves a claim that officers violated the First Amendment rights of a vehicle passenger during a traffic stop.

Facts as I understand them

On October 9th, 2018, Town of Winterville Police (North Carolina) conducted a lawful traffic stop of a vehicle in which Dijon Sharpe was a passenger. No argument has been raised about the traffic stop itself or whether the stop was lawful. During the stop, Mr. Sharpe began not only recording the interaction but also began “live streaming” the incident on social media. The stopping officer explained that Mr. Sharpe was free to record the stop from inside the vehicle but could not continue the live stream. The officer went on to explain that not only did the live streaming pose a threat of uninvolved parties arriving on the scene, creating a risk to officer safety; but the Town of Winterville Police Department had in place a policy for officers to prohibit such live streaming of certain events. After refusing to comply, one of the Officers reached into the vehicle and attempted to take Mr. Sharpe’s phone from him. While the Officer did not succeed in taking the phone, nor did he take any further action to stop Mr. Sharpe from continuing to broadcast the traffic stop over a live stream, Mr. Sharpe filed suit in Federal District Court claiming Officers violated his First Amendment rights.

The Federal District Court issued a summary judgment in favor of the Officers and dismissed the case, prompting Mr. Sharpe to appeal to the Fourth Circuit Court of Appeals.

Issues to Consider

First, it’s imperative to understand that a traffic stop constitutes a seizure under the Fourth Amendment of the United States Constitution. That seizure, as a fact of circumstance, extends to any passengers of the vehicle being stopped. What authority do officers have over the passengers and their freedom of movement when they are not themselves suspected of violating the law? The United States Supreme Court, citing officer safety risks that are elevated when a stopped vehicle has multiple occupants, ruled in Maryland v. Wilson, 519 US 408 (1997), as an extension of the authority granted in Pennsylvania v. Mimms, 434 US 106 (1977), that officers have the authority to restrict the movement of passengers in a lawfully stopped vehicle; because “as a practical matter, passengers are already stopped by virtue of the stop of the vehicle, so that the additional intrusion upon them is minimal.”

Officer safety is at the forefront of reasoning used by The Court in both the Mimms and Wilson decisions. The inherent dangers posed during so-called “routine” traffic stops are well documented. At the end of the day, when I stop a vehicle for a minor traffic violation, the driver of the vehicle, unbeknownst to me, may have just committed an act of mass murder or is simply experiencing irritable bowels. That unknown can make traffic stops the most unpredictable activities in which law enforcement officers engage.

Recording vs. Live Streaming

With the concept of officer safety in mind, you may be asking yourself what makes live streaming different than recording the incident. While both are creating a recorded record of the incident, from a different perspective than that which would be seen from an officer’s dash cam or body camera, live streaming introduces an extra layer of concern for officers. 99.9% of the traffic stop that I conduct are done so by myself, during which I interact with the driver and any occupants of the vehicle. I work in an urban environment with a moderate to high population density, which is an important factor for consideration.

If a passenger during one of my traffic stops begins to live stream the stop, is providing real-time location information to viewers of the live stream and maybe making false claims of misconduct, you can see how this could quickly create an unsafe situation not only for officers but anyone else involved. Given the anger (largely misplaced, in my opinion) surrounding the profession of law enforcement today, after several high-profile incidents exacerbated by pandering from the media and politicians, a live stream could quickly lead to people arriving on the scene of a traffic stop that could potentially lead to a deadly and unnecessary escalation.

Fiery Debate

During oral arguments during the appeal with the Fourth Circuit Court of Appeals, Judge Neimeyer interrupted the plaintiff’s attorney, who was making a First Amendment argument, to ask, “What rights does an officer have to maintain control of the circumstances during a traffic stop?” The judge went so far as to compare the authority of officers to “curtail” rights provided under the Second Amendment during a traffic stop for safety reasons and asked why such authority could not extend to the First Amendment for the same reasons. While the exchange reportedly devolved rapidly, it was short-lived in the form of an unprofessional argument but continued through the remainder of the proceedings.

Conclusion

The truth is, the “jury is still out.” A decision in the Sharpe case has yet to be rendered, and even when that happens, it’s likely a writ of certiorari will be filed with the United States Supreme Court for a final ruling on the issue. Though no guarantee exists that The Court will hear the case.

Nonetheless, from my perspective, this case raises a very interesting issue. In law enforcement, one of the toughest challenges we face, from a legal perspective, is the balance between safety (for everyone) and the rights of individuals with whom we interact.

I’m looking forward to seeing how this case turns out and the debates and analyses that are undoubtedly forthcoming.