Here’s yet another video showing police officers mistreating one of our military veterans for absolutely no good reason. Gee, I wonder, what’s the common theme? Some of you are quick to criticize me anytime I bring up race. Here’s the thing. The Constitution requires police officers to have reasonable suspicion that a crime was committed before detaining an American citizen.
Does the Constitution allow police officers to pull people over based on a hunch? No. Does the Constitution allow police officers to pull people over based on their skin color? No. Does the Constitution allow police officers to pull people over and detain them for any reason at all, short of actual reasonable suspicion that some crime or traffic law has been violated by the driver? No. Do we see them do so in video after video, after video? We sure do. Let’s take a look at this one from Jacksonville, Florida, showing the traffic stop and warrantless arrest of Navy Veteran Braxton Smith.
Most people understand and accept that citizens have a constitutional right to record video of interactions with police officers, at this point – in general. Law enforcement has fought that every step of the way, of course. But is there a right to “livestream” encounters with police officers? More specifically, does a passenger of a vehicle detained at a traffic stop have a constitutional right to livestream the encounter from his cell phone?
Dijon Sharpe was a passenger in a car stopped for a traffic violation in Winterville, North Carolina on October 9, 2018. WPD officers Myers Helms and William Ellis performed the stop. Sharpe began live streaming the encounter with Facebook live. Helms told Sharpe that he could record the traffic stop from inside the car during the encounter but not livestream the traffic stop from inside the car during the traffic stop.
At the beginning of the stop, while the driver and Mr. Sharpe waited for the officers to approach the vehicle, the driver called a third party on his cell phone in order to have a witness to what was happening. Meanwhile, Sharpe began live-streaming what was happening on his Facebook account. The livestream shows that, during the stop, the driver continued his conversation with the third party on his cell phone during the entire course of the stop, including while speaking with the officers. The footage shows the interaction between Mr. Sharpe – the passenger – and Officer Helms. The video shows Officer Helms asking for Mr. Sharpe’s identification and then returning to the police vehicle. During this time, the driver continued his conversation with the third party over the cell phone, explaining that police had begun following the vehicle for some time before initiating the traffic stop. He expressed concern that he had been racially profiled.
As the driver was talking to the third party on his phone, Sharpe talks into his phone, reassuring viewers on Facebook live that he was fine, advocating for his practice of recording interactions with law enforcement. According to the lawsuit he would subsequently file, Sharpe began recording because he had been the victim of a brutal beating at the hands of police officers in the nearby town of Greenville ten months earlier, during a traffic stop. That experience prompted him to ensure any future interactions he had with law enforcement would be recorded for his own protection.
After emerging from the police vehicle, Officer Helms is seen on the video approaching the car window. He says, “What have we got? Facebook Live, cous?” As soon as Mr. Sharpe responds affirmatively, Officer Helms abruptly thrusts his arm through the passenger window and attempts to seize Mr. Sharpe’s cell phone, while pulling on Sharpe’s seatbelt and shirt. During this altercation, Officer Helms tells Sharpe: “We ain’t gonna do Facebook Live, because that’s an officer safety issue.”
Shortly afterwards, following the issuance of citations to the driver, Officer Ellis states: “Facebook Live . . . we’re not gonna have that, okay, because that lets everybody y’all follow on Facebook that we’re out here…” He says that recording is fine, but if you’re live, your phone is gonna be taken. Otherwise you’re going to jail. Sharpe then asked Ellis if that was a law. Ellis responded that it was a violation of the RDO statute, which is basically North Carolina’s obstruction statute. In the end, the phone was not seized. There was no citation or arrest pertaining to the livestreaming. However, the threat was made that next time, the phone would be seized and an arrest would be made if the phone was not forfeited.
In Mr. Sharpe’s video, look how the officer is standing there watching Sharp and the driver and treating them like they’re up to no good. Yet the reason for the stop was supposedly a basic traffic violation. The officer asks for Sharp’s ID because “he likes to know” who he’s out with. Is it any wonder that police officers get the reputation they have?
Based on the incident, as well as the threat to stop livestreaming in the future, under penalty of arrest, Sharpe sued the officers and the Town of Winterville under Section 1983 for violation of the First Amendment. The district court dismissed the claims against the individual officers on qualified immunity grounds, holding that it was not clearly established in October of 2018 that a passenger in a stopped vehicle had a constitutional right to record and live broadcast the interaction. Additionally, the Court held that live-streaming by a vehicle passenger poses a “unique” threat to officer safety that mere recording does not and is therefore not clearly protected under the First Amendment.
Eleven months later, the district court dismissed the claim against the Town of Winterville on the grounds that Mr. Sharpe had no constitutional right to live broadcast at all, and that even if he did, the town’s policy of arresting traffic stop passengers for live-streaming passes constitutional review under intermediate scrutiny. The district court held that “[r]ecording a traffic stop for publication after the traffic stop versus livestreaming an ongoing traffic stop from inside the stopped car during the traffic stop are significantly different.”
“[L]ivestreaming the interaction from inside the stopped car during the traffic stop … allows … those watching, to know the location of the interaction, to comment on and discuss in real-time the interaction, and to provide the perspective from inside the stopped car,” JA81. “The perspective from inside the stopped car, for example, would allow a viewer to see weapons from inside the stopped car that an officer might not be able to see and thereby embolden a coordinated attack on the police.” Thus the Court concluded that Mr. Sharpe had no First Amendment right to live-stream.
Mr. Sharpe appealed to the Fourth Circuit. It drew significant attention from civil liberties and press advocates. Seven amicus briefs were filed in support of his claims. Here’s Sharpe’s opening brief:
Oral arguments were held last month, which involved a heated discussion between one of the federal judges on the panel and the lawyer representing Mr. Sharpe. During the oral arguments, the federal judge seemed highly concerned about the rights of police officers, as opposed to the rights of an innocent citizen being detained as a passenger in a traffic stop. Listen for yourself.
Here’s the full raw footage, which was linked in the court record (Facebook video link).
The Fourth Amendment grants no rights to officers. “The right of the PEOPLE to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” Its purpose is to guarantee individual rights against the power of the government.
This flies in the face of actual Fourth Amendment law. They are using amorphous and general concerns over “officer safety” that are not particular to the individual they are seeking to restrict. In other words, the officers here, and those advocating for them to do so, want the officers to have the power to stop livestreaming, based only on obscure general concerns over officer safety. Theoretically, if some bad guy was watching the livestream he could find the location while the stop is in progress and theoretically harm the officers or cause some other safety issue.
They’re not saying that this particular individual should not livestream under these circumstances, because that person is a particular safety threat and those facts can be demonstrated in court or to a judge. They’re using blanket reasons. Again, that flies in the face of existing Fourth Amendment law, which requires particularity to the individual for things like frisks and searches. Blanket reasons never go well with constitutional law. Usually we’re told that law enforcement actions were justified based on the “totality of the circumstances.” Well now, because they hate video footage, we no longer look at the totality of the circumstances, but rather, at the vague concept that police officers are afraid of absolutely everything and everyone.
The fact is, freedom is scary. They need to deal with it, or get another job. We cannot and must not appease that fear.
Two days ago, I took the deposition of two police officers in a civil federal rights lawsuit (section 1983 case) involving an allegation that my client’s exterior home surveillance camera was disabled by the officers. They both pled the Fifth Amendment. Here’s a photo of the actual disabled camera:
This is from the “Creepy Cops Search Case,” which if you’ve been following my work, you’re well-aware-of. But what about situations where they don’t destroy anything, but just cover or move the camera?
I came across some recent unrelated footage of police officers covering, concealing, or otherwise redirecting, a home’s surveillance cameras. When this hit the interwebs, it of course immediately sparked discussion. Police officers defended the footage, claiming officer safety reasons to do this, with some claiming that they always do this as a matter of policy. Is this legal? Is this a Fourth Amendment violation? Is it a First Amendment violation? Is this a crime?
There are a few issues with this. Are we talking about doing this pursuant to the execution of a search warrant for the subject residence. And if so, does the search warrant specifically authorize the seizure of surveillance cameras themselves, rather than the footage?
It hit the news yesterday that several Oak Hill, West Virginia police officers had supposedly overdosed after narcotics were thrown at them by a suspect they were attempting to arrest. I was already looking into the science behind these claims when I found out that a client of mine actually witnessed what happened, and began filming with his cell phone.
“Sheriff’s Office: Two officers in Oak Hill overdose after suspect throws drugs at them” was the headline. Here’s the media report:
What were the chances that a client of mine just happened to be driving by when it happened? Compare the footage with the press release and let me know your thoughts on the matter. I have some initial thoughts, but want to look into it some more.
Here’s the statement issued by the sheriff’s department:
It’s a relaxing summer afternoon. You’re visiting family about 15 minutes away from your home. You locked your doors before you left, like you always do. Your three dogs are safely secured inside your house. All of a sudden you get a notification from your Ring doorbell security camera, at your front door. You see two police officers and some other stranger standing on your doorstep. They just busted the lock off your front door. They’re in the process of entering your home. You have three dogs in the house and you immediately have awful thoughts racing through your head about police officers and dogs. Not knowing what else to do, and having no idea what’s happening, you confront them using the doorbell’s audio speaker. They tell you that they’re there to evict you. You have no idea what they’re talking about.
This was the experience of Jennifer Michele of Land O’Lakes, Florida, in Pasco County. It was a complete surprise to her, given the fact that she had no knowledge of any eviction proceedings against her. She had been living there for 13 years. She posted this footage to Tik Tok, and it went viral. Here it is…
The Maxim that “a man’s house is his castle” is older than our Republic, and deeply rooted in Anglo-American jurisprudence. As scholars have observed, it protects all levels of society, down to the “poorest man living in his cottage.” It formed much of the basis of the Fourth Amendment itself. While 4th Amendment protections have eroded over time almost everywhere else – cars, schools, sidewalks, airports, and so on, it has retained its original strength in the home. The home still receives the greatest protection under the Constitution. It’s our castle. This is expanding in many states, with “castle doctrine” and “stand your ground” laws, and other self defense protections for law abiding citizens.
Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. The only exceptions are consent and exigent circumstances, which are not at issue here.
Thus where law enforcement busts your lock off your front door, without a warrant, or in this case a valid eviction order, they violated your Fourth Amendment rights, by default application of the law. But are there any consequences? This is where qualified immunity comes in.
There are two scenarios:
1) Where the warrant or eviction order lists the homeowner’s correct address, but which is actually the wrong address. So on its face, there is a warrant for that address, but it was supposed to be a different address; or 2) where the warrant or eviction order lists an entirely different address and they just showed up and executed it at the wrong house. This could be equally applicable to arrest warrants where the wrong John Smith is arrested. Is the mistake in the warrant, or in the execution of the warrant? If the mistake is in the warrant, then how did it get there, and who was responsible? These questions are all highly important to the qualified immunity issue. The unfortunate reality is that qualified immunity is typically granted in these sorts of mistaken identity or address cases. Not always, but very frequently.
One must also remember that this is Pasco County, the same county as the video I recently posted showing the SWAT style entry into a woman’s home over a building permit inspection. That brings up what is most likely a better legal argument here, which is the existence of a policy of constitutional misconduct. This is likely not the first issue. Why is Pasco County law enforcement showing up in tactical gear, with very little information or communication, for an eviction? There may be a Monell Claim here, which would be important because a county or municipality cannot assert qualified immunity as a defense to Monell liability for a policy of constitutional violations.
The consequence of out of control government here was relatively harmless in the end. But often it’s not. Similar mistakes are often made, with tragic results. When law enforcement forcibly enters someone’s home, they do so with firearms, which often are used against occupants – either human or canine. Because, they have to get home safe at night. Nobody else does, necessarily, but they must, at all costs. Protect and serve. When you have the peace-of-mind of qualified immunity, you can just act first and sort out the damage later. Or, as we used to say in football, “let the paramedics sort them out.”
A video went viral on Tik Tok showing Ring doorbell camera footage of a police officer removing a family’s “F” Joe Biden flag from its display on the front of the home. The homeowner explained in a subsequent video that he had been previously threatened with arrest for good ‘ole disorderly conduct if he continued to display the flag. Is this a violation of the First Amendment? What about the Fourth Amendment?
Back in February, I discussed the “F” the police T-shirt case out of Ohio, where the 6th Circuit issued an opinion denying qualified immunity to police officers sued for arresting a man for “disorderly conduct” for wearing a shirt containing protected First Amendment speech. In that case, the Court made very clear that police academies have to stop teaching young officers that any use of profanity is disorderly conduct. To the contrary, the law is clear that the First Amendment protects the use of profanity, so long as it’s unaccompanied by other conduct that could be construed as disorderly. Thus, the use of the “F word” in and of itself cannot be criminal conduct.
“It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’”
Cohen v. california scotus 1971
Not only can the “F word” be used, but it can be used to verbally criticize the police. Or, in this case, Joe Biden. As the U.S. Supreme Court has held, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state….”
Moreover, expressing criticism of a sitting U.S. President, via use of a flag, is pure First Amendment protected activity. The homeowner mentions in his follow up video that he had researched the town ordinances, and none were applicable, but rather that the mayor lived down the street and held an opposing political ideology. I’ll note that, even if there were a town ordinance, it would be unconstitutional, as a violation of the First Amendment. Now an HOA would be another matter, potentially. Why? Because that’s a private organization, and therefore cannot violate the First Amendment.
Also, what about the Fourth Amendment? As I’ve explained numerous times, the front porch of your home, which would include a flag sticking out of it, is considered part of your home – your castle – for Fourth Amendment purposes. If a police officer walks up and seizes a part of your home – something off of it – is that a seizure? You better believe it. Is it illegal? Illegal in this context means “unreasonable.” Unreasonable, when it comes to your home, is defined with a question: was there a warrant? No, then it’s illegal as a violation of the Fourth Amendment.
Recently we filed a federal civil rights lawsuit in federal court, alleging that Parkersburg, West Virginia police officers were caught on video setting up the false arrest of a man for allegedly committing battery on a police officer. Fortunately there was surveillance footage, which was shown at the man’s jury trial, resulting in his acquittal. Warrantless arrests require the existence of probable cause. If no probable cause exists, for instance in the event that the arresting officers themselves create the alleged nonexistent crime, the Fourth Amendment is violated. “False arrest” is basically a type of unreasonable search and seizure.
Here’s the complaint, and the video will follow shortly:
The lawsuit was filed today on behalf of Dustin Elswick, against Putnam County, West Virginia, along with four police officers involved in the infamous “Special Enforcement Unit.” These are the cops who were caught on hidden camera searching the inside of Dustin’s home. Although they cut the wire on an outside surveillance camera, they were apparently unaware of the cameras inside the home.
This is a federal “Section 1983” lawsuit alleging the violation of federal constitutional rights; namely, the Fourth Amendment right to be free from unreasonable search and seizure. A warrantless search of your home is automatically unconstitutional in the absence of one of two exceptions: consent, or exigent circumstances (emergency), neither of which apply here. Two prior federal lawsuits have already been filed against the SEU thus far for similar allegations in the Johnson case, as well as the Dillon case. The remedy is an award of money damages, along with reasonable attorney fees and expenses.
There was an internal investigation, as the news reported, but we never received information about the outcome. That sheriff has since been replaced.
Cell phones are increasingly becoming a primary component of any encounter between police and civilians. Along with that comes the warrantless seizure of cell phones. After all, they hold great evidentiary value from a law enforcement perspective. Neither the Fourth Circuit, nor the U.S. Supreme Court, has yet taken a position on whether there is a First Amendment (and therefore Fourth Amendment) right to videotape police officers. This isn’t exactly the same issue, since it mostly deals with seizing and searching cell phones incident to an arrest. But, the issue is the same when the person filming is arrested, at which point their phone will be seized.
The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurieand find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant.
In any event, you know that right now across the country, police officers go through the cell phones of arrestees, where they find valuable information such as, every text message conversation the person had in the last year – or even their email history. They also contain photos, videos – you name it. Those practices, and law enforcement training, is going to depend on the outcome of Wurie.
