Dijon Sharpe v. Winterville Police Department
Published Opinion (2023)
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Rule of Law:
Livestreaming a police traffic stop is protected speech under the First Amendment, placing the burden on the government to justify any such restriction as tailored to a weighty interest; however, an officer may be protected by qualified immunity if the specific First Amendment right to livestream in the given context was not clearly established at the time of the incident.
Facts:
- Dijon Sharpe was a passenger in a vehicle that was pulled over by Officer Myers Helms and Officer William Ellis of the Winterville Police Department.
- Sharpe began livestreaming the traffic stop to Facebook Live shortly after the car was pulled over.
- Officer Helms noticed Sharpe's activity and attempted to take Sharpe’s phone by reaching through the open car window.
- Officer Helms and Officer Ellis told Sharpe that he could record the stop but could not livestream it to Facebook Live because it threatened officer safety.
- The officers further stated that if Sharpe attempted to livestream a future police encounter, his phone would be taken away, or he would be arrested.
Procedural Posture:
- Dijon Sharpe sued the Winterville Police Department, Officer William Ellis (in his official capacity), and Officer Myers Parker Helms, IV (in his individual and official capacities) in the United States District Court for the Eastern District of North Carolina under 42 U.S.C. § 1983.
- The district court dismissed Sharpe's claim against the Winterville Police Department, finding it could not be sued under North Carolina law (this dismissal was not appealed).
- The district court awarded Defendants (officers in their official capacities, effectively the Town) judgment on the pleadings, determining that the alleged municipal policy did not violate the First Amendment.
- The district court dismissed the individual-capacity claim against Officer Helms, finding he was protected by qualified immunity.
- Sharpe appealed the district court’s rulings regarding the municipal policy and Officer Helms’s qualified immunity to the United States Court of Appeals for the Fourth Circuit.
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Issue:
1. Does a municipal policy that bans livestreaming certain interactions with law enforcement plausibly violate the First Amendment? 2. Is a police officer entitled to qualified immunity for attempting to stop a passenger from livestreaming a traffic stop when the First Amendment right to do so was not clearly established at the time?
Opinions:
Majority - Richardson
1. Yes, Sharpe plausibly alleges that the Town of Winterville's alleged policy banning livestreaming a traffic stop violates the First Amendment. Livestreaming a police traffic stop is speech protected by the First Amendment because creating and disseminating information, particularly regarding governmental affairs, is a major purpose of the First Amendment. While regulation of protected speech is permissible, the government bears the burden of demonstrating that any restriction is tailored to weighty enough interests. The Town's asserted interest in officer safety is strong, but Defendants have not yet sufficiently demonstrated how the alleged policy furthers or is tailored to that interest at the pleading stage, thus Sharpe's claim survives. 2. No, Officer Helms is entitled to qualified immunity. At the time of Sharpe's traffic stop, it was not clearly established that the First Amendment prohibited an officer from preventing a passenger from livestreaming their own traffic stop. The right must be defined with specificity, and no controlling authority in this jurisdiction or consensus of persuasive authority from other jurisdictions directly addressed this specific factual scenario (a passenger livestreaming their own stop, as distinct from a bystander recording). Given the differences in balancing interests between a bystander recording and a passenger livestreaming a stop, a reasonable officer in Officer Helms's position would not have understood that his actions violated a clearly established First Amendment right.
Concurring in the judgment - Niemeyer
I agree with the majority's judgment that Officer Helms is entitled to qualified immunity and that the official-capacity claim against the Town should be remanded for further proceedings. However, I believe the analysis should acknowledge the role of the Fourth Amendment. The restrictions on electronic communication occurred in the context of a lawful Fourth Amendment seizure—a traffic stop—during which officers may lawfully prohibit a person detained from conducting electronic communications with others if it is a reasonable intrusion for officer safety. The proper inquiry, therefore, should be whether such a restriction, imposed as part of a lawful seizure, was 'reasonable' under the Fourth Amendment, rather than solely a free-standing First Amendment analysis. At the time of the stop, it was clearly established that officers have 'unquestioned command of the situation' during traffic stops due to inherent dangers, and may take reasonable steps for officer safety that intrude on liberty interests. While officer safety is a strong interest, and livestreaming could introduce additional hazards by revealing real-time location to an unknown audience, no clearly established law specifically addressed whether prohibiting livestreaming in this context was unreasonable. Thus, Officer Helms is entitled to qualified immunity.
Analysis:
This case clarifies that livestreaming police encounters constitutes First Amendment-protected speech, compelling municipalities to justify any policies restricting such activities with robust governmental interests. It also significantly reinforces the high bar for overcoming qualified immunity, particularly when new technologies or specific factual permutations (like passenger livestreaming vs. bystander recording) mean a right is not 'clearly established.' The concurring opinion introduces a different analytical framework, emphasizing the interplay between First and Fourth Amendment rights during lawful seizures and proposing a 'reasonableness' standard, which could shape future challenges to police conduct during stops, especially as technology continues to evolve.
