FOURTH CIRCUIT DECLARES RIGHT TO LIVESTREAM POLICE

[Deep Lurker]

A new ruling by the U.S. Court of Appeals for the Fourth Circuit declares for the FIRST time within the states under the jurisdiction of the Fourth Circuit (including Maryland) that the public has a “clearly established” Constitutional right to LIVESTREAM video of the police in the public performance of their duties.

This published opinion handed down last week establishes this ruling as precedent within the Circuit, thus will potentially have ground-breaking First Amendment ramifications impacting the doctrine of Qualified Immunity and the power of police to prohibit or restrict live-streaming video of their public activity.

The WaPo wrote about the North Carolina case back in November:

https://www.washingtonpost.com/dc-md-va/2022/11/29/livestreaming-police-traffic-stop/


You can listen to the oral argument in this case, which was heard in Richmond on October 27, 2022, beginning at the 21:12 minute mark of this audio archive:





Reason.com reports the 4th Circuit panel decision after oral argument was handed down last week, on February 7, 2023.

Yes, you have a First Amendment right to livestream cops

The U.S. Court of Appeals for the 4th Circuit confirmed that you are well within your First Amendment rights to livestream video of police officers in action.

reason.com

https://reason.com/2023/02/09/yes-you-have-a-first-amendment-right-to-livestream-cops/


The decision of the District Court below was vacated in part, affirmed in part, and remanded by published opinion.

Judge Richardson wrote the opinion, in which Judge Nachmanoff joined.

Judge Niemeyer wrote an opinion concurring in the judgment.

This decision is here:

https://www.ca4.uscourts.gov/opinions/211827.p.pdf

 

[TapRackBang]

Anthony Graber gives a nod and a thumbs-up.

Trooper Uhler and Joe Cassilly weep into their soiled copies of the Bill of Rights.

 

[wpage]

Cecil B DeMille approve of this and recommends cinema arts, even for amateur's. Driver discretion advised. Not recommended for audiences under 17...

Unless accompanied by a adult.

 

[Abuck]

It’s absurd to think that this could be decided opposite of this ruling. There are cameras everywhere anymore. So many are tied to offsite storage, essentially “live streaming” continuously. Ring and other security cameras for example. To think that those, or any other cameras, would not be legally allowed to videotape LEO or other public officials would create a whole other can of worms.

I question why LEO, or other officials, don’t want us, and often try limiting, capturing them operating in their official capacity?

 

[vanquish1]

Pardon me, do you have any Gray Poupon?

 

[Inigoes]

It’s absurd to think that this could be decided opposite of this ruling. There are cameras everywhere anymore. So many are tied to offsite storage, essentially “live streaming” continuously. Ring and other security cameras for example. To think that those, or any other cameras, would not be legally allowed to videotape LEO or other public officials would create a whole other can of worms.

I question why LEO, or other officials, don’t want us, and often try limiting, capturing them operating in their official capacity?

I am agreeing with you.

Some LEOs may have a fear of live Intellegence being shared with anyone and everyone in real time. The LEO may have an enemy that may want to exploit that incident.

 

[TheOriginalMexicanBob]

Personally...from my own experience as a LEO...officers are more afraid of their supervisors using body cams and other videos against them for punitive and personal purposes.

 

[Kman]

It’s absurd to think that this could be decided opposite of this ruling. There are cameras everywhere anymore. So many are tied to offsite storage, essentially “live streaming” continuously. Ring and other security cameras for example. To think that those, or any other cameras, would not be legally allowed to videotape LEO or other public officials would create a whole other can of worms.

I question why LEO, or other officials, don’t want us, and often try limiting, capturing them operating in their official capacity?

Agreed.

Video recording is like asking why.
If any authority is opposed to asking why, they're probably doing something they know is wrong.

 

[Abuck]

I am agreeing with you.

Some LEOs may have a fear of live Intellegence being shared with anyone and everyone in real time. The LEO may have an enemy that may want to exploit that incident.

I understand, to a point. That point is limiting a basic right. When Waze became popular there was a bit of worry about live reporting of LEO locations. Technology has potential for good or bad. I’d prefer that the courts don’t criminalize constitutional behavior, such as filming, live or otherwise.

If we threw the book at actual offenders, especially those specifically targeting LEO, that might go a long way on cracking down on that sort of behavior. Stay safe!

 

[Inigoes]

With waze there was anonimity. Yes, it said where the speed trap was, but it didn't say who was running the speed trap.

I think Kman and TOMB hit the nail on the head.

 

[fabsroman]

Oral argument was at the end of October. Oral argument for Bianchi was December 6th or thereabout. So, another 6 weeks or so until we get that opinion. Fingers crossed.

As far as this is concerned, I see no reason why a civilian should not be able to record a traffic stop, or livestream it. If the officer really has enemies in the area, the enemies would have to be paying particular attention to the civilian's live stream AND then have the wherewithal to get to the location before the traffic stop ends IF they want to harm the officer.

Honestly, how hard would it be to harm a specific officer if one really, really wanted to do so, with or without video recording, etc.

 

[Stoveman]

Sgt Pope is apoplectic.

 

[Bertfish]

Sgt Pope is apoplectic.

That was my first thought

 

[swinokur]

Can this ruling be considered ex post facto ?

 

[Bullfrog]

Good, in 99.9% of situations.

I can see some rare exceptions... such as a team preparing to deal with a barricade or hostage situation when they should be allowed to limit live broadcasts for safety reasons.

 

[teratos]

Can this ruling be considered ex post facto ?

It should be, since it is a 1A protected activity. The 1A has been in place since what…1791?

 

[Bullfrog]

It should be, since it is a 1A protected activity. The 1A has been in place since what…1791?

+1

If it is a constitutional right, it has been so since the constitution was ratified, even if not recognized as such until now.

 

[Deep Lurker]

This is where it gets very complicated.

You can blame the Doctrine of Qualified Immunity for what seems obvious about our Constitutional rights, but isn’t in a court of law.

From the reason.com article:

”Under the doctrine of qualified immunity, police officers are only open to individual liability if they violate a clearly established right that is protected by the Constitution.”

The key phrase here is “clearly established.”

If the U.S. Supreme Court hasn’t already ruled as such, appellate judges in the Federal Circuits determine when a Constitutional right becomes “clearly established” in their Circuit, and only declare this finding in a case before them.

Some Constitutional rights are “clearly established” in some Federal Circuits, but not in others.

Without such a case that specifically asserts a violation of that particular right, that judicial declaration isn’t made; once made, that declaration becomes binding Constitutional precedent in that Circuit.

If police officers (and other public officials with QI) then violate that “clearly established“ Constitutional right in that Circuit, they can lose their QI and are individually liable for a civil suit.

In other words, arguably (IANAL) to successfully sue the cops for violating your Constitutional right(s) the Federal Circuit Court of Appeals for your state must have DECLARED in a PUBLISHED opinion that a particular Constitutional right has been found to be a “clearly established” right.

Who knew? Not me.

 

[Deep Lurker]

Wait wait … there’s more!

“Live-streaming video” and “recording video” involve what seems to me to be two sides of the same digital coin: closely related or similar technologies.

But I have learned they are regarded differently and litigated separately under the law.

The former tool “communicates” information in real time, the latter tool stores information for later dissemination - - arguably creating different potential risks to police officers - - thus they are litigated as separate and distinct legal issues in court.

The plaintiff Sharpe in this NC case was only live-streaming video, not recording video.

(Sharpe wasn’t prevented from recording video; in the record it was clear he was given permission by the Winterville police to record video during the traffic stop.)

But he was ordered not to livestream the traffic stop, which he continued to do despite being warned to end the livestream, and after an officer attempted (but failed) to grab Sharpe’s phone through the open window.

For this reason (no video recording was at issue) the Fourth Circuit ruled Sharpe lacked standing to seek a declaration that “he has a First Amendment-protected right to record police officers in the public performance of their duties.”

This distinction was explained in “Footnote 5” on page 6 of the decision:

 

[PO2012]

Oral argument was at the end of October. Oral argument for Bianchi was December 6th or thereabout. So, another 6 weeks or so until we get that opinion. Fingers crossed.

As far as this is concerned, I see no reason why a civilian should not be able to record a traffic stop, or livestream it. If the officer really has enemies in the area, the enemies would have to be paying particular attention to the civilian's live stream AND then have the wherewithal to get to the location before the traffic stop ends IF they want to harm the officer.

Honestly, how hard would it be to harm a specific officer if one really, really wanted to do so, with or without video recording, etc.

The issue isn't the Officer having "enemies." The issue is that the vast majority of the people "livestreaming" Police, in my experience, are criminals. Just so we're perfectly clear, by "criminals" I'm not referring to people engaged in traffic infractions like speeding; I'm talking about drug dealers, burglars, car thieves and murderers. Normal people don't generally record their encounters with Police. The people I deal with on a daily basis record Officers in an effort to throw them off balance so they can escape, destroy evidence or assault the Officer. Unfortunately, a lot of young Officers are more scared of receiving a civilian complaint from a habitual felon or having some cell phone video taken out of context by their Chief / Commissioner / Superintendent, than being shot in the head and immediately become supine in the face of a smart phone pointed in their direction. For every Officer you have smashing some motorist's phone while yelling racial slurs, you have about 10,000 other Officers who would rather allow criminals brandishing cell phones to run riot than risk being accused of interfering with "protected 1st amendment activity."

What "Livestreaming" really means is telling whoever is watching to come to wherever you have them stopped as quick as possible to try and remove evidence, help them escape or otherwise obstruct and hinder. This is routine and if you can't get adequate back up or any back up at all you're in trouble. I've been surrounded by crowds summoned via "live stream" telling me that if I don't release their friend, let them take his money / drugs / gun / unregistered vehicle / [insert contraband or evidence of a crime here] that they're going to beat me to death or shoot me with my own gun. These people aren't posturing - they're serious and if they sense that they can get over on you, you're as good as dead.

I can see this issue going all the way to the Supreme Court and, honestly, I don't know how they would rule if it does. We'll have to cross that bridge when we come to it.

I'll also address the issue of public surveillance. If it were up to me, it would be illegal to have surveillance cameras, whether owned by government or private citizens, recording public spaces. If you want to have CCTV on your property or in your home or business - fine, but the camera can't capture anything over your property line and/or outside the building. The benefits that we get from CCTV as far as crime solving are significant. That being being said, those benefits are far outweighed, in my mind, by the dangers posed by government, either alone or in conjunction with big business, being able to effectively monitor everyone's movements and whereabouts all the time.