Livestreaming a police stop from inside a car is protected, U.S. appeals court told - Reuters

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• 4th Circuit judge framed case as officer rights, not First Amendment
• Arnold & Porter firm represents passenger pro bono

(Reuters) - A U.S. appeals court on Thursday questioned whether it was lawful for a passenger in a vehicle detained by North Carolina police to livestream the encounter despite a warning from the officer that doing so was prohibited.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, grappled for an hour with how to resolve tension between the First Amendment right under the U.S. Constitution to record police in public performing their official duties and restrictions that officers say they impose for their own safety during investigations.

Many U.S. appeals court rulings in recent years have said the First Amendment protects bystanders who record the police in public, but it is less clear whether a passenger or driver in a stopped vehicle can broadcast an encounter as it happens. The 4th Circuit panel said the case raises questions under the Fourth Amendment regarding freedoms of people detained by police.

"It's not a First Amendment case," Circuit Judge Paul Niemeyer said at Thursday's hearing. He added: "The question you ought to be addressing is what rights do the officers have during the course of a traffic stop?"

The case, arising from a traffic stop in October 2018 and a ruling last year dismissing claims against the police, attracted substantial attention from civil liberties advocates and police associations.

Passenger Dijon Sharpe's attorney, Andrew Tutt, a senior associate at the law firm Arnold & Porter Kaye Scholer, did not immediately comment.

The lawyer for the Winterville Police Department in North Carolina, Dan Hartzog Jr of Hartzog Law Group, declined to comment.

Sharpe, who is Black and has said he was a victim of police abuse just months earlier, was a front passenger in a car the Winterville police stopped for an alleged traffic violation.

"We ain't gonna do Facebook Live, because that's an officer safety issue," an officer said, according to court records. Another officer said that recording, without a live broadcast, would have been acceptable. "So in the future, if you're on Facebook Live, your phone is gonna be taken from you," that officer said.

At Thursday's hearing, Tutt argued the police had no reason to try to end Sharpe's live broadcast. "They just said it was something they could ban because they felt like banning it," Tutt said.

Niemeyer heard the case with Circuit Judge Julius Richardson and U.S. District Judge Michael Nachmanoff, sitting by designation.

The case is Dijon Sharpe v. Winterville Police Department, 4th U.S. Circuit Court of Appeals, No. 21-1827.

For Sharpe: Andrew Tutt of Arnold & Porter Kaye Scholer

For Winterville: Dan Hartzog Jr of Hartzog Law Group

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