Recording Police….Record at Your Own Risk?
In October 2018, Dijon Sharpe was a passenger in a car that was stopped by police in Winterville, NC. In 2017, Sharpe was involved in a police encounter where he says he was tased and beaten by officers, but without video evidence, his version of events were not believed by the court. Since that incident, Sharpe “made it his business” to record any traffic stop in which he was involved. So, as the passenger in a vehicle stopped by police, Sharpe pulled out his phone and started recording the incident using Facebook Live. The officers ordered him to stop recording, grabbed for his phone, and stated that he would go to jail if he did not comply with police orders.
Can you really be arrested for recording a police officer during a traffic stop?
The answer is not as clear as you might think. In fact, no circuit court has ruled on whether a passenger in a traffic stop can be blocked from recording, nor have they determined whether live-streaming is different from other forms of recording. This case is being heard in the Fourth Circuit where they have never ruled on the right to record at all. The lack of precedent in this case makes the outcome far less certain.
Officer safety was cited as the reason for not allowing the passenger to record the incident. Specifically, the officer alleged that live-streaming the stop would encourage more people to come to the scene and create an unsafe situation for the officer. The district court judge in North Carolina bought this argument and found that live-streaming the stop presented different safety concerns for the officer. Sharpe argued that live-streaming provided him with better protection during the stop and ensured a more accurate depiction because it could not be edited, and it is stored online making it impossible for someone to wipe the recording from his phone.
Subject to “reasonable” restrictions
Seven federal appellate courts have affirmed that there is a right to film police, however they have qualified that right, saying that it is subject to “reasonable” restrictions. The Supreme Court has not yet ruled on what qualifies as reasonable. The Supreme Court has given law enforcement great leeway when the First and Fourth amendments intersect. Officers are able to argue that their actions are not about controlling free speech, but rather for controlling the crime scene. Further, because they recognize traffic stops as being extremely dangerous for officers, everyone in the vehicle has a Fourth amendment right that is temporarily diminished. Thus, officers can, in a way, subvert the First amendment by couching it in Fourth Amendment terms.
Two appellate courts have found a First Amendment right to record traffic stops, however, neither of those cases involved someone recording from inside the stopped vehicle. In this case, even if the Fourth Circuit were to rule in favor of Sharpe, he will likely have no recourse against the police department or city due to the novelty of the legal question and protections afforded to local governments. Regardless, the court’s decision in this case will have a significant impact on the scope of our First amendment rights.
If you think your Constitutional Rights have been violated, call attorney Joe Edwards at (614) 309-0243!