Recording cops in action is one thing. Live-streaming cops is another, and it may cause other serious issues
I’ve been a cop for almost a quarter century, and I’ve never had an issue with someone using their camera phone on me, as long as it’s from a safe distance. I was once conducting a DWI investigation and a friend of the driver got up close and said, “I’m recording this…” I instructed her to get on the sidewalk and record all she wants. She refused at first and after explaining she had ten seconds to move until I arrested her for Walking in street where sidewalk provided (yes, that is a city ordinance). She finally backed down.
Now I must say this is an interesting angle to this concept. You’re not recording a police encounter, you are live broadcasting it. This may invite others to try to watch, or interfere.
Fourth circuit judge and lawyer face off in legal smackdown over live streaming traffic stops
Argument pits First Amendment rights against Fourth Amendment reasonableness
The traffic stop Consider the real dangers of live streaming to officer safety. Be able to articulate them.
Appellate oral arguments are normally governed by protocol and decorum. A dustup last month in the Fourth Circuit was a notable exception. Before checking out what the brouhaha was about, let’s look at the facts that led to it.
Dijon Sharpe was a passenger in a car properly stopped for a traffic violation by Winterville (North Carolina) Police Department Officers Helms and Ellis. Sharpe began live-streaming the encounter with Facebook Live to his Facebook account. Helms asked Sharpe if he was doing Facebook Live and Sharpe said he was. Helms reached inside the car for Sharpe’s phone, pulling on his seat belt and shirt. Helms explained Sharpe couldn’t do Facebook Live “because that’s an officer safety issue.”
However, Helms didn’t take Sharpe’s phone. Sharpe continued to live stream and message with people watching. Later, Ellis told Sharpe he was free to record the police, adding that the police recorded also, but he wouldn’t be allowed to live stream because that let everyone who followed him online know where the encounter was occurring and there might be just one officer on scene. Ellis said if Sharpe tried to Facebook Live in the future, his phone would be taken, and he would be arrested.
Sharpe filed a 42 U.S.C. § 1983 lawsuit alleging his First Amendment rights were violated…
In two different orders, the U.S. District Court granted summary judgment to the officers, department and town based on the pleadings. The court concluded no circuit had previously found a passenger had a right to live stream a traffic stop. Additionally, the Fourth Circuit had not even decided a passenger had a right to record, let alone live stream a stop.
Sharpe appealed to a 3-judge panel of the Fourth Circuit. In briefing and oral argument, his attorney said other circuits’ decisions that found a right to record traffic stops supported finding a right to live stream them. He contended a generalized statement regarding officer safety did not override Sharpe’s First Amendment right. Live streaming served a strong public and governmental interest in deterring police misconduct. It would also keep officers safer by deterring conduct against them which would be captured on video.
Sharpe’s First Amendment crusade drew significant attention from civil liberties and press advocates. Seven amicus briefs were filed in support of his claims.
Counsel for the officers, the department and the town, in briefing and at oral argument, pointed out the lack of any case that held there was a right to live stream traffic stops. Even within the circuits that found a right to record police, none addressed the right of a passenger in a traffic stop to record.
Counsel also argued that live streaming presented additional risks to officers by alerting untold viewers in present time to the location of the stop thereby creating the potential for a crowd control operation. The Supreme Court had long recognized the inherent dangers of traffic stops for officers and had upheld reasonable time, place and manner restrictions on driver and passenger conduct for purposes of officer safety.
Flash mobs, etc, enabled by instant video communications. An issue I’d never thought of before, but it makes sense. I’ve had incidents on the street where things got tense quickly and people who have no dealing with the people being handled by the cops show up. All of a sudden two cops and four people in a car become two cops, four people in a car, and 20-30 people on the sidewalk.
But it was Judge Paul Neimeyer that began a crusade to elevate officer safety to a Fourth Amendment right of police. Less than a minute into Sharpe’s argument, he began interrupting and asking, “What rights does an officer have to maintain control of the circumstances during a traffic stop?”
Point of order, the officer has no right to maintain control. He has the legal authority granted to him by the state to control a crime scene. Call me a bit particular about that point, but rights do not come because of a badge, you are “endowed by your Creator,” with them.
That being said, the officer has the authority and duty to maintain control of a potentially hostile scene, with any legal means. If there is an issue with the auto driver/passengers, get back up. If people living in the area show up and may cause a problem, get more back up. If the natives are getting restless, call for backup. Twenty civilians see ten cops back up the original two, they will likely get calmer. Showing the flag if you will.
I have no doubt this will be heading to the Supreme Court in the future. Something like this can easily be split decisions by two district courts (i.e., the 9th Circus in California and the 5th Circuit in Louisiana). Once that happens, SCOTUS almost immediately takes the case to settle the matter. I’ll keep an eye on this in the future.
Michael A. Thiac is a retired Army intelligence officer, with over 23 years experience, including serving in the Republic of Korea, Japan, and the Middle East. He is also a retired police patrol sergeant, with over 22 years’ service, and over ten year’s experience in field training of newly assigned officers. He has been published at The American Thinker, PoliceOne.com, and on his personal blog, A Cop’s Watch.
Opinions expressed are his alone and do not necessarily reflect the opinions of current or former employers.
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Recording the ‘Stopo’ is fine, sending it to a remote site, yours, is OK, but not LIVE streaming. No Way. For the reasons listed by you. But, not ALL cops are respectful of people’s rights, and the recording of their actions needs to be allowed for purposes of weeding the bad ones out. Please note that my wife and I suppport our local police very actively and strongly.
Mike Eiford
Fort Holabird, 1966
Again, I have no issue with you video taping me from a safe distance, i.e., close enough for you to video, far enough that if you decide to charge me, I can react. But with technology, and more to the point, how people react, this can cause a mini-riot.
Had an officer try to take a 16 year old into custody for assaulting his 17 year old sister. He ran, she grabbed him in a parking lot, and the 17 year old who called us started to assault the officer. Next thing we know, 30 people from the apartment complex are out there and we’re dropping an assist (deploying all cars in the area).
That was from an apartment complex to a gas station 50 feet away. Image multiple apartments and houses rushing to where a police action is being taken?
Again, I’m not sure how the courts will run with this, it will be interesting to see.
“If the natives are getting restless, call for backup. Twenty civilians see ten cops back up the original two, they will likely get calmer.”
This comment seems highly optimistic. First, if people were motivated to come to a traffic stop (or other crime scene) based on a livestream, they may well be angry and anti-police when they arrive. Seeing even more police show up may make them more angry and more anti-police. The author seems to be suggesting that extra police will essentially intimidate those that gather. Adding police seems more like throwing fuel on a fire.
Moreover, if livestreaming of police action is allowed, groups may organize to host, monitor, and respond to such livestreaming. Such groups could easily send trained protestors to a police action to purposely escalate violence in support of an anti-police narrative. Of course pro-police citizens might also show up, setting the stage for a far more serious confrontation than a traffic stop.
Finally, anyone showing up at a crime scene after watching it livestreamed will almost certainly have missed the details that led to the police intervention. Livestreaming will selectively shows events from the “victims” perspective. The missing details get filled in subjectively by imaginations.
It is hard to understand how showing people a partial view of a complex situation in real time can make the world a safer or better place.
“The author seems to be suggesting that extra police will essentially intimidate those that gather. Adding police seems more like throwing fuel on a fire.”
I’ve done it before. We had an idiot who hired over 300 people from “Da Hood” as temporary labor for the Houston Rodeo. And the supervisor puts out, “All 300 show up at 400 pm Friday to get your check.” Two spots in a room about the size of a classroom. We almost had a riot.
I arrived and the “natives were restless,” and first thing I did was pull out my 12 gauge. I’m by no means the biggest dude out here, but men bigger than me saw that Remington 870 and backed up. Yes, intimidation works. Ten cops and a sergeant calmed down over 300 angry people, and got most of them paid within two hours (we organized the process better in 10 minutes than the moron in charge did in three weeks).
An argument I might be forced to make, if I was the cop in the situation is, that I also have the same protections against the mob as the person being stopped has, which means I have the right to go about the lawful duties I am charged with, in the most safe and secure fashion as the perp has, at the very least. There is no right to bring the mob to force a certain kind of justice that is not written in the Constitution. That cop should not be forced into situations that cause others to be at risk, including him!
Live streaming increases the potential for the mob, so it should not be allowed. That just seems to be such a no-brainer. Recording for historical evidence is far enough, but live streaming is ridiculous.
Ridiculous arguments. The passenger could simply place a call to someone and draw a crowd. Will we make phone calls at traffic stops illegal too? Couldn’t the recipient of said call live stream by proxy? If law enforcement fears communicating events as they happen shouldn’t they just abolish the 1rst, 4th and 5th amendments at traffic stops? Like I said, ridiculous.
This, so much this. “If you haff nossink to hide, HERR Offisser, as you are so vont to say, zen you haff nossink to fear!”
Well, both of you are wrong. That cop has every right as you do, and the moment the mob shows up and reduces his ability to do his job, he has other rights, as in his duty to protect himself and the action he was hired by the department to do.
When one conflicts with the other, my bet is that the cop has judicial authority to do his job, as long as it is in the scope of his duty.
The mob can go play with their video somewhere else.
I should have said that I think both of you will be shown wrong. Sorry about that.